Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka B [1982] INSC 60 (4 August 1982)
SEN, AMARENDRA NATH (J) SEN, AMARENDRA NATH (J) PATHAK, R.S. CITATION: 1982 AIR 1276 1983 SCR (1) 49 1982 SCC (2) 544 1982 SCALE (1)608
ACT:
Law relating to minor child-custody of the minor daughter aged 11 years, whether to be with the mother of the father Duty of the Court-Whether it is obligatory on the part of the Court to interview the minor for ascertaining the minor's wishes and implement the same-Parsi Marriage and Divorce Act, 1936, Sections 49; Guardians and Wards Act, 1890 : Sections 7 to 17.
HEADNOTE:
The appellant and the respondent belong to the Parsi community and they were married in Bombay on the 27th December 1960 according to the rights and ceremonies of the Zoroastrian religion and custom. A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years. Irreconcilable difference and embittered relationship between the appellant and the respondent had led to the filing of Suit No. 14 of 1979. by the appellant mother, for judicial separation.
In the several applications made by the parents for the custody of the child, the learned judges of the High Court, before whom they said applications came up for disposals interviewed the children separately and in the presence of the parents and passed appropriate and equitable orders, keeping in the forefront the welfare of the minor children.
The boy has now become a major as per the Parsi Marriage and Divorce Act and the question of his custody does not arise.
The custody of the minor daughter was ultimately given to the father as per the order of the Division Bench of the Bombay High Court dated October 16,1981, Hence the appeal by the appellant mother, after obtaining Special Leave of the Court.
Allowing the appeal, the Court.
HELD: 1. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor, the Court has a Special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor. [79 B-D] Rosi Jocob v. Jacob A. Chakrammakkal [1973] 3 S.C.R. 918 followed. H 2:1 There is no duty or obligation cast on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question 50 of the child custody under section 49 of the Parsi Marriage and Divorce Act, 1936. [81 F-G] 2:2 It is true that Section 17(3) of the Guardians and Wards Act, 1890 speaks of the consideration by the court of the preference of the child "if the minor is old enough to form an intelligent preference". The instant case, is not one under the Guardian of Wards Act 1890. [83 B-C] 2:3 However, there cannot be any manner of doubt as the Court's power of entertaining any minor for ascertaining the wishes of the minor, if the Court consider it so necessary for its own satisfaction in dealing with the question relating to the custody of the minor. [83 D] In the facts and circumstances of the case, the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. The report of the Social Welfare Expert records that the interviews, the minor girl faced before the several judges cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court is bound to have effected the sensitive mind of the minor girl.
Though the girl is quite bright and intelligent as recorded by the learned judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrassing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will ensure to her benefit and welfare Any child who is placed in such an unfortunate position. can hardly have the capacity to express an intelligent preference which may require the court's consideration to decide what should be the course to be adopted for the child's welfare. Therefore, sending for the minor and interviewing her in the present case, will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind. [83 E-H, 84 A-D] 3:1 on a consideration of all the facts and circumstances of the case and bearing in mind the paramount consideration of the welfare of the child, the child's interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the boarding school, which is admittedly a good institution.
3:2 Home influence plays a very important role in shaping the life of every child. Influence of a happy home where the children are brought up under the affectionate guidance of their parents and other relations, all concerned with the welfare of the children no doubt, enables the children to lead a normal healthy life and materially contributes to their welfare. In a happy home, the children are free from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents. In such a case, the court is normally not called upon to interfere and to consider the welfare of the children and the welfare of the children is well taken care of by their parents whose primary concern is to 51 see their interest and welfare. It is also no doubt true that the children who stay at home with their parents and do not go to boarding school may also be very well disciplined in life and may have a very healthy happy and normal growth, while staying at home. Therefore, in the interest of the children whom they have brought into existence and who are innocent, every husband and wife should try to compose their differences which are bound to be in any house. Even when any husband and wife who are not in a position to reconcile their differences and are compelled to part, they should part in a way as will cause s least possible mischief to the children. [84 E-H, 85 H, 86 E] When the atmosphere in a house vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife, causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents fo each of whom she has great affection, the healthy and normal growth of their child is to be seriously affected. In the interest and for the welfare of the child in such a case, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension. In such a case, the proper and best way or serving the interest and the welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embittered relationship between her parents does not easily and constantly affect her tender mind. [88 C-E] 3:3 The question of the custody of the child must necessarily be considered from the only view point of tho welfare of the child. The person to whom tho custody of the child has to be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in her school life. [89 D-E] In the instant cases, it is clear that the father is not inclined to allow the child to remain in a Boarding institution, If the custody be left to him, the - father iq view of the disinclination to allow the child to remain in the Boarding - institution, may be in a position to create difficulties for the child for remaining in the institution by non-payment of fees or otherwise.' The 'father is obsessed, with the idea of obtaining exclusive control of the daughter and keeping the - daughter with him in his house. [89 B-F] F It is not in dispute and it cannot be disputed that the mother has a great deal of affection for her daughter in her heart and to serve the best interest of the daughter the mother is prepared to make any necessary sacrifice for the welfare of the daughter. The mother, at considerable expense, had put her in Kimmins Boarding School, Panchghani, which is recognised to be a very good institution She has been paying for all the expenses of the daughter at the G' school. She has steady income out of which she is in a position to meet all , the expenses of her daughter at the school. The mother also does not suffer from any obsession regarding posession of the girl and she wants her daughter to lead a healthy normal life essential for her proper growth and development. The mother is very anxious that the child should continue to remain in the Boarding; School. The girl now aged about 11 years, is reaching an age when she will need the guidance of the mother. Therefore, the custody of the girl should be given to the mother. [89 F-H, 90 A-B] 52
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3032 of 1981.
Appeal by special leave from the judgment and order dated the 16th October, 1981 of the Bombay High Court in Appeal No. 102 of 1981.
V. S. Desai, B. R. Agarwala and M.N. Shroff for the Appellant.
M C. Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and T. Sridharan for the Respondent.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. Whether the father or the mother should have the custody of their minor daughter now aged 11 years, is the question which falls for consideration in this appeal by special leave granted by this Court.
Irreconciliable differences between the father and the mother and embittered relationship between the two have resulted in a sad protracted litigation. Unfortunately, in the various proceedings in Court between the father and the mother, the child had become the central figure and the child had appeared in Court on occasions for being interviewed by the learned Judges of the Bombay High Court.
The child, it appears, is quite bright and rather sensitive.
The unfortunate litigation between the father and the mother appears to have badly affected the normal and healthy growth of the child. The situation appears to be all the more unfortunate, as the father and the mother both love the child dearly and the child is fond of both her parents. It is, indeed, said that the parents who are both genuinely fond of their daughter and have her welfare in their hearts, could not compose their differences and work out a solution which would be most conducive to the welfare of the child.
The responsibility has, therefore, devolved on the Court.
The task of the Court is indeed difficult and delicate. The Court in this case, is concerned with a human problem affecting the future of a little girl. We feel that in a case of this nature a decision of the Court however, may not succeed in solving the real problem and in achieving the desired goal. Anyway, as all attempts by Courts to bring about an agreed solution of the problem to the satisfaction of all concerned, have failed the Court must proceed to discharge its duty, however painful and delicate that task may be.
53 We shall now proceed to state some of the broad facts relevant A for the purpose of the disposal of this case.
The appellant who is the mother of the child and the Respondent who is the father of the child, both belong to the Parsi Community and they were married in Bombay on the 27th December, 1960 according to the rights and ceremonies of the Zoroastrian religion and custom. A son was born to them on the 6th of May, 1965. The son who is called Shiavux is now more than 16 years old. A daughter was born to the appellant and the respondent on the 18th April, 1971. The daughter is named Gospi and she is now nearly 11 years of age. In this appeal we are concerned with the custody of this girl Gospi. The appellant who is the mother and whom we shall describe in the judgment either as the appellant or the mother, has been in the employment of Tatas for a long time and she now works as a confidential secretary to one of the Directors and gets a salary of Rs. 2500 per month. The respondent obtained training in architectural engineering and had obtained a diploma. The respondent had also obtained a licence from the authorities to enable him to function as an architect. The respondent had worked with various concerns from time to time and had also worked at times of his own as an architect. The respondent at present owns a taxi which he plies himself. According to the respondent he makes a gross earning on average of some- thing between Rs. 125 to Rs. 150 per day, by plying his taxi. After the marriage on 27.12.1960 the respondent set up their matrimonial home in Mount Villas at Bandra, the tenancy of which stood in the name of the appellant. As the appellant is an employee of Tatas, the tenancy was granted to her by Ratan Tata Trust which owns the premises. It appears that unfortunate differences arose between the appellant and the respondent and the appellant left the matrimonial home on 21.5.1978. It is indeed unfortunate that the parents could not reconcile their differences at least in the interest of their children and on 21.4.1979 the appellant filed a suit being suit No. 14 of 1979 for judicial separation. On 24.4.1979 the appellant in her suit No. 1411979 made an application for getting the custody of both the children i.e. the son Shiavux and daughter Gospi. By consent of the parties on 27.4.1979, an interim order was passed on the said application and the said order is to following effect:
"The children to spend the week-ends commencing from Saturday the 28th April 1979 with the Petitioner and 54 stay over-night with the petitioner on Saturdays and Sundays. Defendant to send the children to the Petitioner - at 10.00 a.m. On Saturdays. Petitioner to return the children to the defendant by 9.00 a.m. On Mondays.
Liberty to the Petitioner to take the children out of Bombay to Lonavla or Matheran for a fortnight commencing from 5th May 1979 and ending 20th May, 1979.
Petitioner undertakes through her learned counsel to bring the children back to Bombay on 20th May 1979 and to give written intimation thereof forthwith to the Prothonotary and Senior Master. The Petitioner shall return the children to the defendant on 21st May 1979 by 9 a.m.
Liberty to the defendant to take the children out of Bombay to Matheran or Lonavla from 22nd May 1979 till 3rd June 1979 and to bring the children back to Bombay. on or before 3rd June.
Should however the defendant not desire to take the children out of Bombay from 22nd May till 3rd June 1979, the Petitioner shall be at liberty to take the Children out of Bombay during this period and shall return the children to the defendant by 9.00 a.m. On 4th. Should however neither the petitioner nor the defendant be in a position to take the children out of Bombay from 22nd May till 3rd June, the children shall remain with the defendant and the petitioner shall have week-end access to the children in the manner stated in clause (I) above.
In the event of the defendant being unable to take the children out of Bombay from '2nd May, the defendant shall give written intimation of his liability to do so to the petitioner's advocate on or before 15th May, 1979 in which event the petitioner shall be at liberty to keep the - children with her either at Lonavla or Matheran till 3rd June 1979 and shall return the children to the defendant by 9.00 a.m. On 4th June 1979.
This arrangement shall be till 15th June 1979.
Liberty to the Defendant to take the children to Undwada and Shirdi between 4th and 8th June. 1979".
55 The application came up for final disposal before Lentin, J. The learned Judge interviewed the children in his chambers before passing his order on the said application on 28.6.1979. As this happens to be the first order passed by the Court after interviewing and speaking to the children, it will be appropriate to set out the order which reads:
"I have talked to the children in my chambers. The boy completed 14 years of age and the girl has completed 8 years of age. I have found both the children extremely intelligent and sensible. Both appear to be distressed at the present state of acrimony between their parents. Both have expressed their desire to spend their time with each of the parents since it is not possible for them, in view of the-present state of affairs to spend their time with both the parents at the same time.
After having talked to the children and after having ascertained their wishes, I pass the following order for access in the interest of both the children.
The father shall have access to the children from Monday to Friday and the mother shall have access to .
the children during the week-ends, viz. Saturday and Sunday.
The children shall be sent by the father to the mother directly from School on Saturday and the children shall remain with the mother till Monday morning when the mother will leave the children or arrange for them to be p left at the school.
The mother shall have access to the children on public holidays from 10.00 a.m. Of such holiday till the following morning when she will leave or arrange for the children to be left at the school.
It is clarified that though Monday the 27th of August, 1979 is a Public Holiday (Navroz Day) the children shall spend the 27th August 1979 with the father. The mother shall return the children to the father's residence by 11.00 a.m. On the 27th day of August 1979," 56 Though the order passed by the learned Judge was in the circumstances a very proper order passed in expectation that the order would be worked out smoothly to the satisfaction of all concerned and would serve for the time being the best interest of the children. Yet, as subsequent events go to indicate, the order failed to achieve the purpose mainly in view of the attitude of the father who was not willing to part with the children and to allow them to stay with the mother. It appears that the father had made an application for variation of the order passed by Lentin J. alleging in the petition that the children were not willing to live with their mother on Saturdays and Sundays as ordered by the Court. It further appears that no further order was made on the said application of the father. A copy of this order unfortunately does not form part of the records. There does not, however, appear to be any dispute that Mehta, J.
disposed of this application after speaking to the children in chambers on 10.8.1979.
On 24.4.1980, the appellant took out chamber summons for an order against the respondent for allowing her access to the minor children Shiavux and Gospi by having them with her from 16th May, 1980 to 15th June 1980 and for half the period of each subsequent school/college vacation in addition to having them with her on week-ends and holidays, as the respondent had refused to give such access to the appellant. Agarwal, J. who heard the chamber summons spoke to the children alone in his chambers and passed the following order on 2.5.1980.
"During the current Summer Vacation beginning from 15th April 1980 and ending on 15th June, 1980 the children are already with the father from 15th April, 1980 and they will continue to live with the father till 14th May 1980. On 15th May 1980 the father will hand over the children to their mother and from 15th May 1980 till 15th June 1980 the children will remain with their mother. On 15th June 1980, she will bring back the children to the house of their father. The rest of the arrangement between the parties as per order dated 28th June, 1979 will continue.
It may be noted that I have ascertained the wishes of the children before passing the present order.
Liberty to the mother to take the children outside Bombay. if she so desires.
57 The present arrangement of the parents sharing the company of the children during the vacation to continue in the coming October and December vacations on the basis of the children remaining with the father in the first half of the vacation and with mother in the other half.
This arrangement of sharing the company of the children during the vacation will also apply for coming years pending the hearing and final disposal of the suit.
It is clarified that the order, whereby the children go - to their mother every week end, will not be effective during the vacation period as the children for the first half of the vacation will be exclusively with the father and the other half exclusively with the mother.
Chamber Summons absolute accordingly with no order as to costs." D It may be mentioned that the daughter Gospi had been admitted to Carmel Convent High School in the K.G. Class and she had been studying in that School. Shiavux was a student of St. Anne's High School. It appears that on 1 5.6.1980, the Respondent without informing the appellant and without her knowledge or consent removed Gospi from Carmel Convent High School and put her in St. Anne's High School. On the 20th June, 1980 the appellant made an application in her suit for an order for custody of her two children and also for an order that the child Gospi be forthwith . . removed from St. Anne's High School and be put in Carmel Con vent High School. The said application was disposed by Kania, J.
on the 9th of July 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the following order:
"This is a petition for the custody of the two minor children and for the decision of the question as to whether the minor daughter Gospi should be removed from St. Anne's High School where she has just been got admitted by her father. As far as the question of final custody is . concerned, it appears, particularly in view of the orders passed earlier by Lentin J. and Agarwal, J. that that question can be more conveniently decided when the suit is disposed of. This position is accepted by both the parties, 58 As far as the question of change of school is concerned, it is regrettable that the respondent husband has changed the minor's school from Apostolic Carmel Convent High School to St. Anne School without previously informing the petitioner as he should have done. However, after talking to the child, I find that she is anxious to continue . in St.. Anne's School at present. Moreover, she has already been admitted to that school.' In view of this I see no reason why the respondent should be directed to remove her from St.
Anne's School and to try to get her re admitted to Carmel Convent High School. If the child is not very happy in the new school i.e. St. Anne's School the question of changing her school and getting her admitted in Carmel Convent High School can be considered at the end of the academic year. No order as to costs." On 9.9.1980, the Respondent filed a contempt application against the appellant complaining of the violation of the order of the Court in the matter of handing over of the girl Gospi to him. The said application of the respondent was disposed of by Lentin, J. On the 22.9.1980. The learned Judge talked to the children together and also individually and it appears that the learned Judge had a fairly long conversation with the girl Gospi for about 40 minutes The learned Judge thereafter passed an order on the said contempt application of the respondent to the following effect;
"I have talked to the children together and individually. From my conversation with the daughter (aged 9) which extended to well nigh 40 minutes. I do not think that she has either been 'brainwashed', 'tutored' or 'pressurised', into not going to the father. She is undergoing a tremendous mental and emotional upheaval which finds her bewildered and totally unhappy at the increasing acrimony between her parents. She desperately needs her mother and cannot bear to be parted from her and it is not mere childish pique, or 'brainwashing' or 'tutoring' that is behind it. I am aware that normally a parent is given access to his or her child. However, in this case, I fear that if this little girl who is mentally and emotionally disturbed, is compelled to go to her father against her wishes,. the consequences on her well being and her mind in its present state are predictable and will be disastrous.
59 Her conversation with me did not reveal any intention A on the part of the mother to want to flout my order of 28th June, 1979 as urged on behalf of the father. If at all, it showed some resentment on the child's part against the mother for trying to induce her to go to her father against her will. The husband's contention that the wife should have applied for modification of that order, does not take into account (i) that she was trying to persuade the girl to go to her father, (ii) that this at best is a technical breach, and (iii) that confining the wife to civil prison, or otherwise punishing her, would in this case be no solution to what is basically a human problem, more so when looked at from the view of the child who is intelligent enough to speak up for herself and whose interest and well being must be paramount consideration.
Taking all the facts and circumstances into consideration, I pass no order on the motion with no order as to costs. I suspend my earlier order dated 20th June, 1979 to the extent that it gives the husband access to the girl from Mondays to Fridays and clarify that until the disposal of the suit which, I am told, is ripe for hearing, the mother shall have uninterrupted access to the girl and shall not be bound to send the child to the father against the wishes of the child. For the mental and emotional well being of his child, the husband should in good grace make this sacrifice. It is further clarified, if clarification is at all necessary, that the implication of this order is that the husband shall not, until the disposal of the suit, visit the girl at her school, for such visits she dreads, resulting in spells of nausea and black-outs and which visits she finds upsetting and humiliating before her friends before whom she naturally wants to maintain the facade that all is well between her parents." .. . . .
Against the said order of Lentin, J. the Respondent filed an e appeal. During the pendency of the appeal, the suit filed by the appellant and the counter claim filed in the suit by the respondent came up for final hearing. It may be noted that in the counter claim filed by the respondent in the said suit of the appellant, the respondent had made certain allegations against the appellant. On 10. 11.1980, the suit and the counter claim were disposed of. By the decree passed in the suit filed by the appellant. divorce was granted on the 60 ground of desertion of the appellant and the allegation of cruelty made by the appellant against the husband, the respondent, was withdrawn by the appellant. The respondent had also withdrawn all the allegations made against the appellant and the decree for divorce was passed in favour of the appellant, as already noted, only on the ground of desertion. A consent order was passed with regard to other reliefs and under the consent order, the appellant got back her flat in Mount Villas from which she was earlier ousted.
The appeal filed by the respondent against the order of Lentin J. dated 22-9-1980 was also with drawn, and it was agreed that the question of custody of the children would be decided by the Court on a petition for custody to be filed by either of the parties. On 3-12-1980, the respondent filed a petition for custody of. both the children. Since the son Shiavux would complete 16 years of age is May, 1980, and was outside the jurisdiction of Parsi Matrimonial Court, the appellant could not resist the respondent's prayer for custody of Shiavux and the appellant contested the respondents prayer for custody of daughter Gospi. The said custody petition of the respondent came to be heard by Diashaw Mehta, J. and the learned Judge passed an order directing the custody of the children to be given to the father. It is desirable to set out the following,, observations of the learned Judge while passing his order on the custody application. The learned Judge has observed:
"I have interviewed both the minor children individually and also in the presence of each of the parents. I have also talked to the petitioner and the respondent in the presence of the children. I consider both the petitioner as well as the respondent as persons capable of looking after the welfare of their children. The only hurdle in the way of the respondent was that she was not available to the minor Gospi for most of the day after the child returned from School at about 1.00 p.m. and tilt 7.00 p.m. The minor during this period was looked after by Mr. and Mrs. Kotwal.
This, to my mind is an unfortunate situation. However, benevolent, hospitable and kind the neighbours be, I do not see why the child should grow up on the charity of neighbours, particularly when her own kith and kin were available, especially her brother Shiavux. I am informed that Shiavux and Gospi have not met each other for the last six months. I do not know how this situation has been allowed to arise, but I can only say that it is most 61 unfortunate. Both the brother and the sister appear to be A fond of each other and have expressed their desire to live together. I would have willingly given the custody of the minor Gospi to the mother, but for the fact that she is not available to the minor for long hours of the day and again the child will be left to be looked after by neighbours or servants. In the petitioner's house-hold there are three sisters of the petitioner who can look after the welfare of both Shiavux and Gospi in the absence of the Petitioner. At pointed out earlier, one of the sisters is a qualified teacher and can look after the education of the children.
At this stage, I may advert to the conduct of Gospi during the forty-five minutes that she was in my chamber. Almost throughout this period, Gospi kept crying or sobbing or whining although there was no provocation to do so, and this was so even in the presence of her mother, the Respondent. The child appeared to be nervous and kept biting her nails. I had an occasion to meet Gospi and Shiavux about a year ago when a Chamber Summons taken out by the Respondent, was heard by me. At that time during my talks with both the children, I found them to be intelligent, exhuberant and confident. They expressed a desire to live with both the parents. The situation has changed radically today. Gospi has developed an aversion for the father and expressed her desire to live with the mother. On three different occasions she stated that she was not tutored and brain-washed. It appears to me that the child is under considerable mental pressure and at present she is not a normal child. It is important to create an atmosphere where the child will live a normal and healthy life. It will only be under such conditions that the child's progress at School will improve.
Between September, 1980 and today the child's education has been neglected for some reason and this is evident from the fact that the child failed in October 1980 Examination in three subjects. Normally I would have given preference to the desire of the child and would have acceded to her request. In the instant case, however, I do not think that it is in the interest of Gospi to permit her to remain in the custody of the Respondent. The child has been sadly neglected. If the child is to return to normalcy, it is very necessary that she should be returned to the custody of the father.
62 Such an arrangement will permit both the brother and the sister to grow up together and it will allow both of them to take comfort and counsel from each other. I consider this arrangement to be in the interest of both the children Shiavux and Gospi.
I, therefore, order that both the minors Shiavux and Gospi will remain in the custody of the Petitioner till such time as they reach the age of majority i.e. 16 years. Both the minors will remain with the Petitioner during the course of the week i.e. from Mondays till Fridays. The Petitioner will take the children on Saturday moorings at 9.00 a.m. to the house of the Respondent and leave them with her till Sunday 7.00 p.m. when the Respondent will hand over both the minors back in the custody of the Petitioner. During the School vacations, half the period of the vacation will be spent by the children with the Petitioner and half with the Respondent by mutual arrangement. There will be no order as to costs of the petition .
Mrs. Ponda states that this order be stayed as her clients desire to proceed further. This order will be stayed till 9.3.1981".
The appellant preferred an appeal on 6.3.1981 and the appellant also applied for interim stay of the order passed by Mehta, J. It appears that an ad-interim stay was granted by the Division Bench. On the 20.3.1981 a Division Bench consisting of Madon and Khurdukar JJ. disposed of the said application in the following terms:
"Pending the hearing and final disposal of the appeal, the order dated February 19, 1981 appealed against stayed as far as it relates to the minor Gospi alone.
Until the St. Annes High School in which the minor Gospi is at present studying closes for the summer vacation, the Respondent to be entitled to take the child to his residence on Thursdays from 9 a.m. till 8 p.m.
The respondent, who is present in Court, gives an undertaking through his advocate to return the child Gospi to the appellants residence each Thursday by 8 p.m.
63 So far as the school vacations are concerned the A appellant to keep the child Gospi with her for the first half of each vacation and the respondent to keep the child for the second half of each vacation. The respondent to take the child to his residence by 9 a.m.
On-the first day of the second half of each vacation and to return the child by 8 p.m. On the last day of the second half of each vacation.
The respondent who, as mentioned, earlier is present in Court, through his Advocate gives an undertaking to take the child Gospi to the appellant's residence and leave her there by 8 p.m. On the last day of the second half of each vacation.
We may record that we had seen the child Gospi in Chambers on March 10, 1981 and had found her to be an extremely bright and intelligent child. We may further record that the child stated that she did not have any aversion to spend the day with her father, namely, the respondent, but was greatly apprehensive that if she did so, she would not be allowed to return her mother, namely, the appellant, with whom she wanted Lo stay or that some application would be made to the Court on behalf of the respondent for the purpose of not returning the child to the appellant but to keep her with him.
Notice of Motion made absolute in terms of prayer (c) also and the above directions with respect to the Respondent's access on Thursdays during the school terms and the order with respect to the sharing of school vacations also to apply if the child Gospi gets re-admission in the Apostolic Carmel Convent High School from the next academic year for the . school terms and vacations. If the child Gospi does not get re-admission in the Apostolic Carmel Convent High School but continues in the Anne High School, the above directions with respect to the Respondent's access on Thursday. during the School terms and the sharing of vacations to other school terms and vacations.
Costs of this Notice of Motion will be costs in the appeal".
64 As the respondent had not returned Gospi to the appellant, in terms of the order and the undertaking given by the respondent to the Court, the appellant on 3.4.1981 orally applied to the Division Bench consisting of the same learned Judges viz. Madon and Khurdakar, JJ. complaining of the breach of the undertaking and on the said application the Court passed, inter alia, the following order:
"There were some allegations and counter- allegations made by the parties against each other, into which we do not desire to go. We, in the privacy of our chambers, talked to the child. We also talked separately to both the parties. We have also heard both counsel. An unfortunate position in that the child's final examination in the Vth standard in which she is studying commences tomorrow and will finish on April 15, 1981. Purely bearing this circumstance in mind, we permit the child to continue to be with the Respondent until April 16, 1981. On that day we will give further directions in the matter. We are passing this order purely in order not to make the child travel back and forth between the residences during her examination.
Mrs. Ponda on behalf of the appellant states that the child's textbooks, exercise books, the school uniform, etc. are at the appellant's place of residence and that the appellant will hand them over to the Respondent. The Respondent will collect these articles from the appellant's residence by 4 p.m. today.
The matter will be on Board on April 16, 1981 for giving further directions. The parties and the child Gospi will remain present in Court, and the Respondent will bring the child to Court on that day.
We also restrain, pending the giving of further directions, the respondent, his servants, agents and family members from taking the child Gospi outside Bombay." on 16.4.1981, the matter came up again before the same division Bench for final orders and the Court was pleased to pass the following order:
65 "Today in our Chamber we have heard both learned advocates as well as the Respondent who wanted to address us. In course of arguments we pointed out to Mr. Deshmukh, the learned Advocates for the respondent, that when we had talked with the son of the marriage, Shiavux, as also with the daughter of the marriage, Gospi, on March 10, 1981 we found Shiavux using semi- legal pharaseology and words, while we found Gospi speaking naturally like any other bright child of her age. We further pointed out that when we had talked with the child Gospi on April 3, 1981 in our Chamber, we had found her using the same type of pharaseology and words similar as those used by Shiavux and in speaking of various family matters almost echoing what Shiavux had said. When we put this to Mr. Deshmukh, the learned advocate for the Respondent,. he replied that that was because time and again there was talk about this case in the Respondent's house-hold. In our opinion, such talks taking place in the presence of a child cannot be conducive to the happy or healthy psychological growth and development of a child. Mr. Deshmukh, the learned Advocate for the Respondent further made a request to us that though on March 20, 1981 we had directed that Gospi should spend the first half of the vacation with the appellant, that part of the order should be varied because Gospi had just finished her examinations yesterday and had been till then in the grip of the examination fever and not able to go about with the respondent, and, therefore, the respondent should be permitted to keep Gospi for the first half of the vacation. At this, Mrs. Ponda, the learned Advocate for the appellant, pointed out that during the middle of her examination the respondent had taken Gospi to some person at Goregaon. Mr. Deshmukh stated that the said person was known as 'Maiji' and they said person stayed at Goregaon Tekdi and that several persons visit her, for they consider her a holy woman. He further stated that Gospi was taken to the said Maiji to seek her blessings. When we inquired, we were informed that Gospi had also been taken to said Maiji on the 2nd day of April when she was staying with the respondent in pursuance of order dated March 20, 1981, that is, before we had talked to Gospi in the privacy of our chamber on April 3, 1981.
66 Mr. Deshmukh also applied that we should reconsider our order passed on March 20, 1981 in so far as it related to re-admission of Gospi in the Apostolic Carmel Convent High School and permit her to continue in the St. Annes High School, which order we had passed after hearing elaborate arguments on the point. In support of this application Mr. Deshmukh stated that if we were now to talk with Gospi we would find that she has now changed her mind and does not want to rejoin the Apostolic Carmel Convent High School. Assuming this is so, this fact speaks for itself. We, therefore, reject the application also.
In these circumstances, we feel that this is a fit case in which a home-study should be directed to be made by social welfare expert to be appointed by- the Court. For this purpose both parties have agreed to deposit with the Prothonotary and Senior Master of this Court a sum of Rs. 300 each. Accordingly, by consent we direct that each of the parties will deposit a sum of Rs. 300 with the Prothonotary by 12 noon of April 18, 1981.
Further directions with respect to the home- study and the social welfare expert by whom it is to be conducted will be given by us in our chamber at 11 a.m.
On Monday, April 20, 1981. Meanwhile the appellant will take the child Gospi with her to her residence. We reserve the giving of further directions about the party with whom the child will spend the rest of the vacation and with respect to the access of the other parent to the child. The further hearing of this matter is adjourned to 11 a.m. On Monday, April 20, 1981 in Chambers as part heard." On 20.4.1981, the Court appointed Mrs. Clarice D'Souza B.A., B. Ed., holder of a Diploma in Social Service Administration of the Tata Institute of Social Sciences as a family expert to assist the Court in discharging its function in the matter concerning, the child with the observations:
"Parties are agreed that every facility will be given to Mrs. D'Souza for her to interview privately the child Gospi as also the parties themselves and the relatives and neighbours of the parties if Mrs. D'Souza desires to interview them or any of them. Both parties are further agreed 67 that Mrs. D'Souza will be also at liberty to interview the A present as well as the former teachers of the child. The parties are further agreed that Mrs. D'Souza if she thinks it necessary to do so, will be at liberty to take the child and keep her with herself at her place for such period or periods, including overnight stays, as she thinks it necessary, to enable her to make a detached and fair report to the Court.
We may mention that Mrs. D'Souza has stated to us that she does not desire any remuneration for the work she may do in this connection. In our opinion, however, it would be unfair to Mrs. D'Souza who in order to conduct this home study may have to travel from Colaba, where she stays, to Bandara by taxi to conduct these interviews and may have to spend at times the whole day in Bandara and may, therefore, also have to incur some other expenses over her meals or refreshments. We do not see why Mrs. D'Souza should go out of pocket. We will, therefore, decide after the home-study is concluded the amount that should be paid to Mrs. D'Souza out of the moneys which the parties have deposited with the Prothonotary and Senior Master mentioned above. In the first instance, however, we direct the Prothonotary and Senior Master to pay to Mrs. D'Souza towards the disbursement of the expenses which she will have to incur, a sum of Rs. 300 out of the aggregate sum of Rs. 600 deposited by the parties.
For the present we are adjourning the matter as part heard in our Chamber at 2.45 p.m. On Tuesday the 28th April, 1981 for receiving Mrs. D'Souza's report if it is ready. On that day in case the report is ready, the parties are agreed that the Court should decide whether the report should be treated as confidential or should be disclosed to the parties. In case the report is not ready on that day, the parties are agreed that this matter should be decided on a date to which the matter will be further adjourned for the purpose of receiving the report and for deciding whether it should be kept confidential or not.
Meanwhile the child Gospi will continue to reside with her mother, the appellant, and as mentioned in our order dated April 16, 1981 directions as to with whom the child is 68 to spend the rest of the vacation and the right of access of the other parent to the child will be decided by us after receiving the report and after hearing the advocates for the parties." It appears that the minor daughter Gospi who had been living with her mother had been missing from her mother's place on 30.4.1981, resulting in a great shock to the appellant. On the very same day the respondent applied to the Division Bench consisting of the same learned Judges with an affidavit stating that the child had come on her own to the house of the respondent who had brought the child to Court to surrender her and abide by the Court's directions, as he did not want to commit contempt of the Court. As on that date, the appellant was not able to attend the Court because of her illness due to the shock of her not being able to find Gospi, the Court passed an order that for the time being the child Gospi would go with the Respondent and stay with him until May, 1981 and on that date the Court would give further directions. On 13th May, 1981, the Court after considering the report of Mrs. Clarico D'Souza, the family welfare expert appointed by the Court, passed the following order:
"In the circumstances, set out above, we would have had no hesitation in directing that the child Gospi should stay with her mother, the appellant, throughout the summer vacation. However, an unfortunate thing is that the appellant is working in the Tatas and therefore has to be away from home the whole day except during week-ends, while the respondent, who drives his own taxi, can always find time to contact Gospi in the course of the day and lure her away. Bearing these factors in mind, we permit Gospi to stay with the Respondent during the vacation. The respondent will, however, take Gospi and leave her at the appellant's residence on every Friday at 8 p.m. and will collect her from the appellant's residence every Monday by 8 a.m. during the vacation. In our opinion best thing for Gospi would be to go to a boarding school. However, we are sure that the respondent would so poison her mind against any boarding school as to cause yet another psychological turmoil and conflict in her mind. Mrs. D'Souza's report has also convinced us that it is better for Gospi that she should be in Carmel Convent High School rather than St. Annes High School, and that part of the 69 order passed by us on March 20, 1981 will stand. During the school term the appellant will be entitled to take Gospi to her residence straight from the School, every Saturday and to keep her with her and to leave her in the School on Monday mornings. During the rest of the days during the school term Gospi will stay at the respondent's residence. The above directions will be operative during - the pendency of appeal for all school terms and vacations." While passing the said order, the Court in its judgment observed:- "We have very carefully considered the matter.
Between the two spouses the person who in our opinion would be best suited to bring up the child Gospi would be the mother-namely, the appellant. Gospi is a girl about 10 years old, and she needs a mother's care guidance and advice. The appellant has struck us as being refined, mature and has been holding a steady job for the last twenty-one years and is at present drawing a salary of Rs. 2,500 per month. She appeared genuinely concerned with the interest and welfare of the minor.
On the other hand, it appears that the respondent is somewhat immature and erratic, and has never been able to pursue any particular vocation steadily, and appears to labour under a sense of inferiority complex vis-a- vis the appellant. It further appears to us that the custody of the children is more a matter of prestige with the respondent and is a weapon in his armoury to hurt the appellant with. As we had almost on every occasion when the matter was before us talked with the child in the privacy of our chambers, either before or after passing orders, we found that when she was with the appellant she behaved as a normal and happy child, but when she was with the respondent, her personality had totally changed and she appeared to be under a strain." The Court further observed:- "We find that Gospi has been tutored by the respondent to tell a number of lies. According to what she is alleged to have said as set out in the said affidavit, the appellant beats and ill treats her. At no stage has Gospi ever mentioned this. On the contrary, she has always expressed how very happy she was with 70 her, the appellant. Mrs. D'Souza's report also bears this out. Another instance is with respect to Gospi's version as to what happened in Court on April, 16, 1981. As set out in the said affidavit she is alleged to have told the respondent that when her mother, the appellant, came to take her away, she was screaming and shouting and vomited on the Judge's table and that in spite of that, her mother, the appellant, and her lawyer forcefully took her under instructions from the judges. It is true that when we told Gospi to go with her mother the appellant, she whimpered for some time and then threw out out-side the chambers. That the conflict between the , two parents has greatly upset Gospi emotionally, resulting in spells of nausea, has also been noticed by Mr. Justice Lentin in his order passed on September 22, 1980. Further, it is clear from Mrs. D'Souza's report that when the respondent had made Gospi change her school and made her give up Carmel Convent High School and put her in St. Annes High School, she was in the habit of vomiting in that school on the least provocation, and she only adjusted herself in the school when she was reassured by her teachers that she would go back to Carmel Convent High School from the next academic year. After the initial fit of vomiting, Gospi went away with her mother, the appellant, quite happy and content, and of her own accord she got into the taxi along with her mother. We were watching from the corridor outside our chambers, as we wished to observe Gospi's behaviour while she was going home with the appellant, and in order to enable us to do so we had instructed that the appellant and Gospi should leave the Court premises from the entrance facing oval Maiden. We had also instructed one of our PAs. to accompany them and to report to us, what is set out in the affidavit, therefore, cannot be anything else but the tutoring of Gospi by the Respondent. We have already had occasion to observe in an earlier order that this child who, while staying with the appellant, was talking like a normal child, has started using semi-legal phrases, which she was not doing previously." on the 9th of June, the Respondent made an application to the Division Bench of the Bombay High Court for an order for modification of the earlier order passed on the 20th of May, 1981 to the 71 extent that the child Gospi should not be compelled to go to Carmel Convent High School but should be readmitted to St. Annes High School. During the pendency of this application the appellant on the 6th July, 1981 also made an application to the Division Bench for committal of the respondent for contempt of court for violation of the order passed by the Division Bench on the 20th March, 1981. Both these applications came up for hearing together on the 31st July, 1981 by the Division Bench consisting of Madon and Sujata Manohar, JJ. The Division Bench dismissed the application of the respondent for modification of the order dated 20th March, 1981 and the division Bench passed an order on the contempt application taken out by the appellant, committing the respondent to jail for a period of three months and to a fine of Rs. 1000. The Division Bench further directed that the custody of the minor daughter Gospi to be given to the appellant mother pending final disposal of the appeal and the Division Bench further ordered-"As observed in the both Mrs. D' Souza's report and in the order of 13.5.1981 the best thing to do in order to restore Gospi to normalcy would be for her to be in an atmosphere away from where she has been for the last almost two years. The appellant will, therefore, be at liberty to place Gospi in any boarding school of the appellant's choice outside Bombay. We also make it clear that Gospi will spend all her School vacations with the appellant only without any access to or interference from the respondent, his servants and agents including the Respondent's brother and sister or any of them". The Division Bench further suspended the execution of the punishment imposed on the respondent by the said order for a period of four weeks from the date of the order to enable the respondent to file an appeal in this Court, but refused to stay the execution of the rest of the order. Mrs Sujata Manohar, JJ. who delivered the judgment on behalf of the Bench, considered at great length the various facts and circumstances including earlier proceedings between the parties. As this judgment is under appeal, we do not propose to refer to the various findings and observations made in this judgment at any length. Some of the observations may, however, be noted. The Bench observed:- "A number of our brother Judges including one of us (Madon, J.) who have had an occasion earlier to deal with the matter, have consistently considered the mother as a mature and responsible woman who holds a steady job for the last 21 years, fetching her at present a salary of 72 Rs. 2,500 per month. She is a mature woman who is genuinely and deeply concerned with the welfare of her child. All these judges have also remarked that the husband is an unstable person. He is unable to hold any job for any length of time. He also suffers from a deepseated inferiority complex vis-a-vis his ex-wife and for good reasons. From the respondent's conduct throughout this litigation it is also apparent that he has scant regard for the welfare of his daughter. He has, in order to score a point against his ex-wife, not hesitated to drag his daughter from court to court resulting in his daughter's near nervous breakdown." The Division Bench has also observed:- As repeatedly observed by a number of our brother judges including one of us (Madon, J.) in the course of these proceedings, the girl has appeared happy and normal when she is with the mother. She appears tense and nervous when she is with her father. We have no doubt that the child is being pressurised and terrorised into telling lies by the father. The father's conduct leaves much to be desired." The Division Bench further observed :- The respondent and his brothers and sisters and mother do not have any interest in the welfare of the children. This is borne out by the fact that they admittedly talk constantly in the presence of the children regarding the present case so much so that the children have picked up semi-legal words and phraseology as noticed by the Court in various orders." Against this judgment and order of the Division Bench the respondent (father) filed in this Court an appeal under S. 19(1)(b) of the Contempt of Courts Act and in the said appeal made an application for interim stay. On 15.8.81 on the said application for interim order, this Court passed an order staying the operation of the Order of the Division Bench in so far as the same related to the imposition of punishment of imprisonment and fine on the father but directed that the rest of the order of the High Court would stand. This Court further observed that the matter was of an 73 urgent nature and the appeal which was pending before the High Court should be disposed of as expeditiously as possible. It appears that in pursuance of the order passed by the Division Bench of the Bombay High Court which was not in any way affected by the order passed by this Court on 5.8.1981, the appellant had got the minor daughter Gospi admitted into Kimmins Boarding School at Panchgani.
The appeal preferred by the appellant to the Division Bench of the Bombay High Court against the judgment and order passed by Mehta, J. on 19.2.1981 allowing the custody of the minor daughter to the father came up for hearing before a Division Bench of the High Court consisting of Jahagairdar and Ashok Modi, JJ. in October, 1981. It appears that in the course of the hearing of the appeal, the learned Judges had expressed their desire to meet the minor Gospi and directed that the minor Gospi should be brought to Bombay to enable them to see her. Accordingly, Gospi was brought to Bombay and was interviewed by the learned Judges at the residence of Modi, J. on 9th October, 1981. We may note that the learned Judges have recorded their impression of the interview with Gospi in a confidential note and had kept the same in a sealed cover for the benefit of this Court in the event of any such occasion arising. On the 16th of October, 1981, the Division Bench dismissed the said appeal of the appellant with the following order:- "For reasons to be recorded in the judgment to be delivered later, we dismiss this appeal challenging the order dated 19th February, 1981 passed by Mehta, J.
This in effect means that the said order awarding the custody of the minor daughter Gospi to the Respondent- father is confirmed. However, in view of the fact that the minor daughter is at this moment studying in a residential school at Panchgani, we direct that she will not be brought to Bombay till at least 3rd November, 1981. The respondent father is hereby allowed to spend what is called the exit week-end beginning from 23rd October, 1981 with daughter at Panchgani.
After the child is brought to Bombay, the directions contained in the order of Mehta, J. regarding the minor daughter-spending her week-ends and vacations with the mother will come into force. However, it must be made clear that if the school in which the minor daughter is admitted is working on Saturdays, the mother will take the child with her after the school hours are over." 74 The Division Bench delivered its judgment on 3rd November, 1981.
Against this judgment and order of the Division Bench the mother has preferred this appeal in this Court with special leave granted by this Court. In the present appeal this Court passed an interim order on the 12th November, 1981 to the following effect:- "Without expressing any opinion on the merits of the question regarding the custody of the child Gospi, who is the daughter of the appellant and respondent, we direct as a matter of interim arrangement that she shall be allowed to continue her education in the Panchgani School where she is studying at present until the end of the academic year 1981-82. The parents will be at liberty to meet the daughter alternatively, in accordance with the rules and regulations of the school. While the girl is in school at Panchgani she will be at liberty to write letters to both the parents.
We are informed that the school will have vacation from November 18, 1981 till about January 18, 1982 and that the girl wants to come to Bombay during the vacation, we direct that during the forthcoming vacation, she will live with the father for the first half of the vacation and with the mother during the second half of the vacation. The father will bring the child from Panchgani to Bombay on the commencement of the vacation and the mother will take the child back to the school when the school reopens after the vacation.
At the end of the first half of the vacation, the father will deliver the child to the custody of the mother.
The appeal shall come up for hearing in the second week of March, 1982. Liberty to the parties to apply to this Court in regard to the custody of the child during the pendency of the appeal, if the appeal for any reason is not disposed of before April 15, 1982. The appeal (CA 1796/1981) the contempt matter will be tagged with this appeal.
We direct that the school authorities will submit to this Court a report in the first week of March 1982 on the progress and performance of the child, and on the question whether she was happy to be away at Panchgani." 75 The appeal came up for hearing before us and on the conclusion of the hearing we reserved judgment for our consideration of the matter. However, taking into consideration the fact that the next term in the Panchgani School will be commencing shortly and there will also be a short recess of the School we passed the following further interim order on 27.4.1982 pending consideration of the matter and delivery of the judgment by us:- "We direct that until further orders of this Court the child Gospi, the daughter of the appellant and the respondent, shall be allowed to continue her education in the Kimmins High School at Panchgani. The parents will be at liberty to meet the daughter alternately in accordance with the rules and regulations of the School, the first opportunity of so meeting the daughter being afforded to the father. While the girl is in the school at Panchgani, she will be at liberty to write letters to both parents.
We are informed that the school is in vacation from April 21, 1982 to May 12, 1982 and that on the commencement of the vacation the child Gospi was brought home and is continuing there. We direct that she will live with the father for the first half of the vacation, and thereafter will live with the mother during the second half of the vacation. The child will be handed over by the father to the mother in the presence of the Vacation Judge of the Bombay High Court on May 17, 1982 at an hour convenient to the Hon'ble Judge and we request the High Court to inform this Court of the fact of such handing over. We direct further that on the expiry of the vacations the mother will take the child back to the School at Panchgani and entrust her to the custody of the Principal of the School.
The Court trusts that each parent will promote a sense of respect and affection in the child's mind for the other parent and will take active interest in persuading the child to settle down in the school at Panchgani, and so promote an atmosphere conductive to the proper development of her personality, her mental and physical health and the enjoyment of emotional security and well-being." Turning to the merits of the appeal, we must observe at the outset that this case which is concerned
