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Bombay HC: Kids cannot be deprived of either parent.

The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.

Mumbai: Children cannot be deprived of the company of either parent, said Bombay High Court on Monday while hearing wife’s plea to stay a Family Court’s order allowing her husband to take their son for summer holidays.
A vacation division bench of Justice S J Kathawalla and Justice P D Kode were hearing an appeal filed by Priya Kulkarni challenging the family court’s May 9, 2012 order allowing her husband Suhas to take their son Rahul (6) for holidays between May 21- June 4, 2012. The judge also said noted that during interview Rahul expressed eagerness to spend time with his father. “The experience of the warring couples may be bad but it does not mean that the child should remain without the love and affection of the father,” the judge said.
The couple married in May 2005. Their son was born a year later. Priya left the house in 2009 and filed cases under Sections 498 A (dowry) and 326 (causing grievous hurt) of Indian Penal Code with the police alleging that he beat her badly. She then moved the Pune FC for maintenance. In April 2009, Suhas was directed to pay Rs 11,000 jointly to her and Rahul.
Pointing out that Suhas has not complied with the maintenance order, Priya’s advocate F A Pareira argued that Suhas is a criminal and had beaten her badly causing contusion on the frontal lobe of the head. He has criminal record and unless cleared of these cases he should not be allowed access to the child,” said Pareira. He also said the court has orally stayed its order till May 30, 2012.
“How do you call him a hardcore criminal on the basis of these cases?” asked Justice Kathawalla. The judges also noted that no notice was served to Suhas to enable him to appear before HC. “You’ll have to give access to the father. Children cannot be deprived of the company of either parent. As a father why should he not have access to the child?” asked Justice Kathawalla.
The judges said they were familiar with tactics used by couples to deprive either of access to child. “We know all the tricks that are used. You first comply with the order and give him access and then move this court,” Justice Kathawalla added.
The judges said they find nothing wrong with the FC’s order. They also warned that if there is no stay from the FC as claimed by Pareira, “we shall give access to the father for an entire one month.” They directed Priya to hand Rahul to Suhas at the FC on Tuesday. They posted the matter for hearing on Wednesday.
( N a m e s h ave b e e n
c h a n g e d t o p r o t e c t i d e n t i t y )

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SC Judgement: Don’t deny visitation to husband default order

November 3, 2011 2 comments

SUPREME COURT OF INDIA

 

Citation: 2008 AIR 471  2007(11  )SCR854   2007(12  )SCALE758

 

 

 

 

Judgement

 

CASE NO.:
Appeal (civil)  5088-5097 of 2007

PETITIONER:
Mohan Kumar Rayana

RESPONDENT:
Komal Mohan Rayana

DATE OF JUDGMENT: 01/11/2007

BENCH:
C.K.THAKKER & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T 

CIVIL APPEAL NOS.5088-5097 OF 2007
(Arising out of S.L.P.( C) Nos.15167-15176 of 2007)


   Altamas Kabir, J.


1.	  Leave granted.


2	 Since both the parties to the special leave petitions 
are before us, Notice of the Appeals is waived on behalf 
of the respondent, Komal Mohan Rayana.
3	  The appeals arise out of circumstances wherein owing 
to disputes and differences between a married couple, the 
child born of the wedlock has become the object of a 
tussle for custody between the two parents.
4. The subject matter of these appeals are four orders 
passed by the Bombay High Court on 12th July 2007, 19th 
July 2007, 27th July 2007 and 6th August 2007 in two 
appeals from a petition No.D-65/2005 before the Family 
Court.  In order to appreciate the circumstances in which 
these orders came to be passed, it will be necessary to 
state a few facts leading to the commencement of the 
proceedings before the Family Court. 

5.	Admittedly, the appellant herein, who is the husband 
of the respondent, married the respondent on 2nd March 
2002. A daughter was born to them and she was named 
Anisha. Initially there were no disputes as such between 
the parties but after the daughters birth, the atmosphere 
in the marital home began to change.  We shall not go into 
the causes as alleged by the respondent since such 
allegations are not relevant for our purpose, but we can 
only observe that one of the reasons given by the 
respondent for the changed circumstances was the change in 
behaviour of the appellant towards her, on account of 
addiction to alcohol in the company of his friends. 

6.	In any event, there appears to have been some marital 
discord, which resulted in the respondent leaving the 
matrimonial house in July 2004 with her minor daughter and 
seeking shelter with her parents at Bandra.  According to 
the respondent, during the said period she continued to 
send Anisha to the Kinder Campus School at Chembur, the 
area where the appellant was residing and permitted him on 
occasions to keep back Anisha at his residence. The 
respondent has alleged that in October 2005, taking 
advantage of such a situation, the appellant kept Anisha 
back with him and did not return her to the respondents 
custody. This compelled the respondent to meet her 
daughter in the school campus, but since this arrangement 
did not also work out, in the last week of November 2005, 
she approached the Chembur police and with their help got 
back the custody of her daughter.  A series of allegations 
were thereafter made that on 30th November, 2005 the 
appellant, with the help of some of his associates, 
forcibly removed Anisha from the respondents custody and 
made her completely inaccessible to the respondent. It is 
in such compelling circumstances that she moved the Family 
Court seeking custody of her minor daughter under Section 
6 of the Hindu Minority and Guardianship Act, 1956 read 
with Ss.7 and 25 of the Guardians & Wards Act, 1890.
7.	The appellant herein also filed a Custody Petition, 
being D-66 of 2005, and both the applications were taken 
up for hearing together by the learned Family Court. By 
its judgment dated 2nd February 2007 the Family Court 
dismissed the appellants application for custody and 
allowed the application filed by the respdondent by 
passing the following order :
ORDER
The Respondent/Mohankumar Rayana is directed 
to hand over custody of the minor daughter 
Anisha to the petitioner/mother Komal Rayana 
immediately after completion of her final 
terms of the current academic session 2006-
2007.

The Respondent/father shall take all the 
steps to provide all facilities to the minor 
daughter to enjoy her extra curricular 
activities and studies.

After the child Anisha goes to the custody 
of the mother as ordered above, the 
Respondent/father would be at liberty and 
privilege to avail her access every 
alternate weekends, meet her at school at 
any time and share 50% of her school 
vacations, as per mutual arrangement with 
the petitioner/mother.

The petitioner/mother should in consultation 
with the Respondent/father decide the 
question of her further academic education 
and she should not move the child out of the 
jurisdiction of the Court without its prior 
permission and of course after due 
intimation to the Respondent/father.

The father/respondent shall meet all the 
expenses for the education, food and clothes 
etc. of the minor daughter Anisha and the 
Petitioner/mother of her own accord may 
contribute to the same for the child and she 
should not be prohibited by the 
respondent/father from giving the child 
Anisha anything for her own comfort and 
pleasant living.  This arrangement for 
custody is made on the basis of the prior 
consideration for the welfare of the minor 
Anisha and in the event of change of 
circumstances  either  of the parents shall 
be at liberty and privilege to approach this 
Court for fresh direction on the basis of 
changed circumstances.

The custody petition D-65/05 moved by the 
Respondent/father Mohan Kumar Rayana stands 
dismissed  with visitation and access rights 
as ordered above.


8. Aggrieved by the said Judgment and order of the Family 
Court, the appellant filed Family Court Appeal No. 29/2007 
before the Bombay High Court on 23.2.2007 and the same was 
admitted on 7th March, 2007 and was said to have been per-
emptorily fixed for final hearing on 26th March, 2007. On 
26th March, 2007 the respondent also filed an appeal, 
being Family Court Appeal No.61/2007, challenging the 
operation of the judgment of the Family Court dated 
2.2.2007 granting access to the appellant  to meet Anisha. 
The said appeal was also admitted on 3rd May, 2007. On the 
same day, the directions contained in the order of the 
Family Court dated 2.2.07 regarding access to the 
appellant to meet Anisha, were modified by the High Court 
by directing that the minor child would be available to 
the appellant as and when he was physically present in 
Bombay at his house.  It was also stipulated that whenever 
the appellant was not available in Bombay the child should 
remain with the respondent.  It was specifically mentioned 
that the child should not be removed by the appellant out 
of Bombay for any reason whatsoever, except in the 
circumstances mentioned in the order.

9.	A Special Leave Petition was filed by the appellant 
against the order of the High Court dated 3.5.07 and the 
same was disposed of on 18.6.07 with a direction upon the 
High Court to hear the Family Court appeal expeditiously.

10.	Certain circumstances intervened which prompted the 
Division Bench of the Bombay High Court to modify its 
order dated 3.5.07 on 12.7.07 by reducing the access 
granted to the appellant and limited such access only to 
the day time on the ensuing Saturday and Sunday.  The said 
order passed in the two above-mentioned appeals is one of 
the orders forming the subject matter of the appeals 
before us.

11.	Subsequently, after interviewing the parties and the 
minor child, the High Court passed a further order on 
19.7.07 directing the appellant and the respondent to 
visit a psychiatrist with the child and to obtain a report 
from him.  The access granted to the appellant on 
Saturdays and Sundays from 9 A.M. to 9 P.M. was continued. 
The said order passed in application No.81/2007 filed by 
the respondent herein in Family Court Appeal No.61/2007, 
is one of the other orders which form the subject matter 
of the present appeals before us.

12.	A third order was passed by the Bombay High Court on 
27.7.07 directing the appellant and the respondent to seek 
appointment with a psychiatrist within a week, and he was 
also directed to submit his report within 2 weeks after 
the parties were examined.  The interim arrangement made 
earlier was directed to continue. The said order is the 
third order which is impugned in the present appeals. The 
fourth order impugned in these appeals was passed on 
6.8.07 in the pending Civil Application No.81/2007, 
whereby, in view of the intervening circumstances, the 
High Court passed the following order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.61 OF 2007
ALONGWITH
CIVIL APPLICATION NO.81 OF 2007
ALONGWITH
FAMILY COURT APPEAL NO.29 OF 2007

Mr. R.T. Lalwani, Advocate for the 
applicant/wife
Mr. Kevic Settalwad Advocate i/b D.H. Law 
& Associates for Respondent/husband

CORAM :  J.N. PATEL AND A.S. SAYED, JJ
DATE  :	  AUGUST 6, 2007
P.C. (Per J.N. Patel,J):

	Heard.  We find from the conduct of 
the parties that the parties are 
repeatedly moving this Court in the matter 
on one pretext or the other. It is highly 
impossible for the Court to monitor each 
and everything.  This being matrimonial 
matter relating to access of the child, 
the Court has issued directions from time 
to time and it is expected that both the 
parties shall comply with the directions 
of this Court and facilitate each other 
and cooperate with each other in the 
matter. But it appears that the parties 
are trying to interpret the order in the 
manner they want, without being concerned 
about the welfare of the child, which is 
of paramount importance.  This Court has 
suggested to the parties to go for 
counselling and already a psychiatric of 
J.J. Hospital is appointed for the same.  
Recent development is represented by the 
counsel for the parties shows that on the 
last date of access there was some quarrel 
between the parties, which lead to 
hospitalisation of the wife, for injuries 
suffered by her and she is presently 
admitted in Lilawati Hospital and likely 
to be discharged today or tomorrow.

2.	In our considered opinion the 
respondent/wife deserves an opportunity to 
place her affidavit on record.

3.	In view of the recent development as 
brought to our notice, we are left with no 
option, but hold all our interim 
orders/relief to grant access to father, 
in abeyance till this Court  receives 
report of the psychiatrist. We make it 
clear that the parties, if fail to 
cooperate with the Court in resolving the 
issue, this Court would remove the matter 
from its board.  It is not expected from 
the parties to resolve their domestic 
quarrel in the court and ask the Court to 
adjudicate each and every issue, whether 
minor or major, relevant or irrelevant.  
We hope that the parties would maintain 
some discipline in observing the orders of 
the Court and cooperate.

4. Parties are at liberty to mention the 
matter only after they comply with the 
orders of this Court and report of the 
psychiatrist is received. Thereafter this 
Court proposes to pass the further orders. 
The matter stands adjourned for 4 weeks. 
We make it clear that on the mean time we 
would not entertain any application for 
interim relief, or for permitting the 
parties to meet the child, or to take 
matter on board, which has led this Court 
to hold all orders passed earlier in 
abeyance.

(A.A.SAYED,J)			(J.N. PATEL,J)
TRUE COPY


13. By the aforesaid order all access to the appellant was 
kept in abeyance till the Court received the report of the 
psychiatrist. The main grievance of the appellant is that 
by the order of 6.8.07 he was completely denied any access 
to the minor child. He was also aggrieved by the reduction 
of access time by the other orders as well. 

14.	 Since these appeals have been preferred against the 
interim orders passed by the Bombay High Court in the two 
pending Family Court Appeals, learned counsel for the 
appellant, submitted that in these appeals the only 
grievance of the appellant was with regard to denial of 
complete access to his child.  He prayed that the 
visitation rights which had been granted by the Family 
Court be restored during the pendency of the two appeals 
in the Bombay High Court.

15.	Since we are only called upon to decide the said 
issue, we are not required to go into any other question 
relating to the appeals pending before the Bombay High 
Court. We have met the appellant, the respondent and also 
the minor child, Anisha, separately, in chamber, to 
ascertain what each had to say regarding the making of 
interim arrangements to allow the appellant to have access 
to Anisha.

16.	After having looked through the materials on record 
and after considering the views of the parties and the 
minor girl, we are of the view that the appellant should 
not be denied complete access to his minor child, even if 
there has been a default in complying with the directions 
of the High Court and that pending the disposal of the 
appeals he should be allowed to have access to his minor 
child, at least to some extent.
17.	We, accordingly, dispose of these appeals with the 
following directions :-

i)	Since the welfare of a minor child is involved, 
the High Court is requested to try and dispose 
of the pending appeals as expeditiously as 
possible, but preferably within three months 
from the date of communication of this order;
ii)	The appellant/father of the minor, will be 
entitled to have access to Anisha on weekends on 
Saturdays and Sundays and will be entitled, if 
the child is willing, to keep her with him on 
Saturday night.  For the said purpose, the 
appellant shall receive the child from the 
respondent at 10.00 a.m. on Saturday from her 
residence at Bandra or from a mutually agreed 
upon venue and shall return the child to the 
respondent on Sunday by 2.00 p.m. In the event 
Anisha is unwilling to stay with the appellant 
overnight, the appellant will then make her over 
to the respondent on Saturday itself by 9.00 
p.m.; in that case, the appellant will be 
entitled to take Anisha out on Sunday also 
between 9.00 a.m. to 5.00 p.m.;
iii)	Both the appellant as well as the respondent 
must co-operate with each other in making the 
aforesaid arrangements work.  The respondent 
shall not prevent the appellant from having 
access to Anisha in the manner indicated above. 
Likewise, once Anisha is handed over to the 
appellant he too must honour the aforesaid 
arrangements and not keep Anisha with him beyond 
the time stipulated. In the event of either of 
the parties violating the aforesaid arrangement, 
the other party would be at liberty to pray for 
appropriate orders before the Bombay High Court 
in the pending appeals;
iv)	The aforesaid arrangement is being made so that 
the appellant can have access to his minor 
daughter and also to ensure that the childs 
education does not suffer in any way during the 
week.


18.	The appeals are, accordingly, disposed of with the 
aforesaid modifications of the interim orders passed by 
the High Court and save as aforesaid, all the other 
interim directions shall continue to remain operative.

19.	Since, in terms of our earlier directions, the 
expenses of the respondent and Anisha for coming from 
Bombay to Delhi and other litigation expenses is said to 
have been deposited by the appellant with the Registry of 
this Court, the respondent shall be entitled to withdraw 
the same. There shall be no further order as to costs in 
these appeals.


 

Categories: Child Custody Tags:

SC: Father gets the custody of minor daughter

November 3, 2011 Leave a comment


IN The SUPREME COURT OF INDIA

Citation: 2006 AIR 1343, 2006(2   )SCR342 , 2006(3   )SCC62  , 2006(2   )SCALE388 , 2006(2   )JT482 

Judgement

CASE NO.:
Appeal (civil) 6626 of 2004

PETITIONER:
Sheila B. Das

RESPONDENT:
P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH:
B.P. Singh & Altamas Kabir

JUDGMENT:
J U D G M E N T

ALTAMAS KABIR,J.

The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the child to Thrissur.
On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed from his custody by the appellant, filed an application before the Family Court at Thrissur under Sections 7 and 25 of the Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority& Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of
2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at Thrissur took up the respondent’s application for interim
custody of the minor child and on 27th April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s prayer for interim custody. No order was made at that time on the respondent’s application for interim custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of the matter the learned Judge had occasion to interview the minor child once again before delivering judgment and ultimately by his order of even date the
learned Judge of the Family Court at Thrissur allowed the applicati16ons filed by the respondent by passing the following order:-

“1. The respondent is directed to give custody of the child to the petitioner the father of the child, the natural guardian immediately after closing of the schools
for summer vacation.

2. The father shall take steps to continue the study of the minor child in CSM Central School Edaserry and steps to restore all the facilities to the minor child to enjoy her extra curricular activities and studies also.

3. The respondent mother is at liberty to visit the child either at the home of the
petitioner or at school at any time.

4. If the mother respondent shifts her residence to a place within 10 kms. radius of the school where the child is studying the child can reside with the mother for not less than three days in a week. The petitioner father shall not, object to taking of the child by the mother to her own house in such condition.

5. The father the petitioner shall meet all the expenses for the education, food
and cloths etc. of the minor child and the mother of her own accord contribute to the same anything for the child and the father should not prohibit the mother
from giving the child anything for her comfort and pleasant living.

6. If the mother the respondent fails to stay within 10 kms. radius of the CSM
central School, Edasserry however she is entitled to get custody of the child for 2 days in any of the weekend in a month and 10 days during the Summer vacation and 2 days during the Onam holidays excluding the Thiruvonam day.

7. This arrangement for custody is made on the basis of the prime consideration for the welfare of the minor child and in case there is any change in the situation or circumstance affecting the welfare of the minor child, both of the parties are at liberty to approach this court for fresh directions on the basis of the changed circumstance.

OP 239/2000 is partly allowed prohibiting the respondent husband by a
permanent injunction from removing or taking forcefully the “B” schedule articles mentioned in the plant. The parties in both these cases are to suffer their costs.”

Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High Court of Kerala, being M.F.A.No.365/01, wherein by an
order dated 21st May, 2001, the order of the Family Court was stayed. The respondent thereupon filed an application before the High Court for review of the said order and in the pending proceedings, a direction was given by the High Court to the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed before the High Court on 5th July, 2001. From the said report, a copy of which has been included in the paperbook, it is evident that the minor child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court vacated the stay granted by it on 21st May, 2001.

On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the High Court on 14th September, 2001, to interview the
appellant and the respondent in order to make a psychological evaluation and to submit a report. On such report being filed, the High Court by its order dated
31st May, 2002, granted custody of the minor child to the respondent till the disposal of the appeal. Soon thereafter, in June 2002, the respondent filed
an application for divorce before the Family Court at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.( C)  C.C.No. 6954/2002 against the order of the High Court granting custody of the minor child to the respondent till the disposal of the appeal. The said Special Leave
Petition was dismissed on 9th September, 2002. The appeal filed by the appellant before the High Court against the order of the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and 25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003. Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant Special Leave Petition, being SLP ) No. 18961/2003, which after admission was renumbered as Civil Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special Leave Petition for interim visitation rights in respect of her minor child for the months of August and September, 2004. After considering the submissions made by the appellant, who was appearing in person, and the learned counsel for the respondent, this Court
passed the following order:-
“This petition has been filed by the mother of minor girl-Ritwika, aged about
12 years, challenging the impugned order of the High Court dated 16th June, 2003. By the impugned order the High Court confirmed the order of the Family Court holding that it is in the best interest of the child that she be in the custody of the father. The High Court, however, permitted the petitioner to visit the child at the house of the father once in a month, that is, first Sunday of every
month and spend the whole day with the child there with a further stipulation that she will not be removed from the father’s house. The petitioner and the
respondent have not been living together since February, 2000. The divorce
between them took place by order dated 26th June, 2003.

On question of interim custody, in terms of the order dated 30th April, 2003,
the Family Court Trichur, was directed to make an order regarding the visitation rights of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet her daughter at the place of some neutral person and, if necessary, in the presence of a family counselor or such other person deemed just, fit and proper by the Family Court. The Family Court was directed to fix any two days, in months of May, June and July of 2004, considering the convenience of the parties, when the petitioner may be in a position to spend entire day with her child.

Pursuant to the above said order the Family Court had fixed two days in the
months of May, June and July, 2004 so that the petitioner could meet her
daughter on those days. The Family Court directed that the said meeting shall
take place in the room of family counsellor in Court precincts. According
to the petitioner the said arrangement was not satisfactory, so much so that
ultimately she made a request to the Family Court that instead of meeting her
daughter in the room of the family counsellor, the earlier arrangement of
meeting her at father’s house was may be restored. The Family Court, however, did not modify the order having regard to the orders passed by this Court on 30th April, 2004. It is, however, not necessary at this stage to delve any further on this aspect.

Ritwika is studying in 7th class in a school in Trichur. Having heard
petitioner-in-person and learned counsel for the respondent and on perusal of
record, we are of the view that without prejudice to parties’ rights and  contentions in Special Leave Petition, some interim order for visitation rights of the petitioner for the months of August and September, 2004 deserves to be
passed. Accordingly, we direct as under:
(1) The petitioner can visit the house of the respondent at Trichur on every
Sunday commencing from 1st August, 2004 and be with Ritwika from 10.00
a.m. to 5.00 p.m. During the stay of the petitioner at the house of the respondent, only the widowed sister of the respondent can remain present. The respondent shall not remain present in the house during the said period. It would be open to the petitioner to take Ritwika for outing, subject to the condition that Ritwika readily agrees for it. We also hope that when at the house of the respondent, the petitioner would be properly looked after, insofar as, normal facilities and courtesies are concerned;
(2) We are informed that the school in which Ritwika is studying shall be closed
for 7 days in the month of August, 2004 during Onam festival. It would be open
to the petitioner to take the child for outing during those holidays for a period
of three days. After the expiry of three days, it will be the responsibility of the
petitioner to leave the child at the house of the respondent.

The arrangement about meeting on every Sunday would also continue in the
month of September, 2004.
List the matter on 5th October, 2004”

The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition came up for consideration before this Court again on 5th
October, 2004, when on a reference to its earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on 16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as it considered appropriate in respect
of the interim custody of Ritwika during the Christmas Holidays. It was also clarified that till the matter was finally decided by this Court, it would be open to the appellant to make similar applications before the High Court which would have to be considered on its own merits, since it was felt that the High Court would be in a better position to consider the local conditions and pass
interim orders including conditions, if any, required to be placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as Civil Appeal No.6626/04, which has been taken up by us for
final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had erred in law in removing the minor child from the custody of the mother to the father’s custody, having particular regard to the fact that the minor girl was still of tender age and had attained the age when a mother’s care and counseling was paramount for the health and well-being of the minor girl child. The appellant submitted that the minor child would soon attain puberty when she would need the guidance and instructions of a woman to enable her to deal with both physical and emotional changes which take place during such period. Apart from the above, the appellant, who, as stated herein before, is a doctor by profession, claimed to be in a better position to take care of the needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal to look after the needs of the minor child.

From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning till late at night, the respondent was busy in court with his own work and activities which left the minor child completely alone and uncared for. According to the appellant, the respondent who had a farm house some distance away from Thrissur, spent his week- ends and even a major part of the week days in the said farm house. The appellant urged, that as a mother, she knew what was best for the child and being a professional person herself she was in a position to provide the minor not only with all such comforts as were necessary for her proper and complete upbringing, but also with a good
education and to create in her an interest in extra-curricular activities such as music and dancing. The appellant strongly urged that the respondent had never
had any concern for the minor child since her birth and till the time when the appellant left with her for Calicut. The appellant contended that for 7 years after the birth of the minor child, the appellant had single-handedly brought up the minor since the respondent was too pre-occupied with other activities to even notice her. According to the appellant, the minor child was extremely happy to be with her till the respondent began to claim custody of the minor and soon after obtaining such custody, he was able to influence the minor to such an
extent that she even went to the extent of informing the learned Judge of the Family Court that she preferred to stay with her father.On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was noticeable in parents who had been separated and who are bent upon poisoning the mind of their minor children against the other party. According to the appellant, there could otherwise be no other explanation as to why even after being with the appellant for 7 years, the minor child had  expressed a preference to be with her father after she was placed in his custody. The appellant laid stress on her submissions that not only till the age of 8 years,
when custody of the minor child was given to him, but even thereafter the respondent had all along been an absentee father taking little or no interest in the affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of the respondent, the minor child was left on her own much of the time, which was neither desirable nor healthy for a growing adolescent girl child. Urging that she had the best interest of the minor
child at heart, the appellant submitted that although under the provisions of Hindu Law by which the parties were governed, the father is accepted as the natural guardian of a minor, there were several instances where the courts had accepted the mother as the natural guardian of a minor in preference to the father even when he was available. Referring to Section 6 of the Hindu
Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him the mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother, the appellant submitted that the aforesaid provision had recognized the mother also as the natural
guardian of a minor. It was urged that in various cases the Courts had considered the said provision and had opined that there could be cases where in spite of the father being available, the mother should be treated to be the natural guardian of a minor having regard to the incapacity of the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie
Dolikuka, reported in AIR 1984 SC 410, wherein having found the father of the minor to be disinterested in the child’s welfare this Court held that the father was not entitled to the custody of the child.

The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the case of Kurian C. Jose vs. Meena Jose, reported in
1992 (1) KLT 818, wherein having regard to the fact that the father was living with a concubine who was none else than the youngest sister of the mother, it was held that the father was not entitled to act as the guardian of the minor. On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother’s care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the
grant of custody of the minor female child. The appellant urged that the courts in the aforesaid cases had considered the welfare of the minor to be of  paramount importance in deciding the question of grant of custody. The appellant urged that notwithstanding the fact that the minor child had expressed before the learned Judge of the Family Court that she preferred to
be with the father, keeping in mind the fact that the welfare of the minor was of paramount importance, the court should seriously consider whether the minor child should be deprived of her mother’s company during her period of adolescence when she requires her mother’s counselling and guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously caused a certain amount of resentment in Ritwika. The appellant submitted that the court should look behind the curtain to see what was best for the minor girl child at this very crucial period of her growing upIn support of her aforesaid submission, the appellant referred to and relied on a decision of the Bombay High Court in the case of Saraswatibai  Shripad Ved vs. Shripad Vasanji Ved, AIR 1941 Bombay 103, wherein in a similar application under the Guardians and Wards Act, it was held that since the minor’s interest is the paramount consideration, the mother was preferable to the father as a guardian. The appellant emphasized the observation made in the judgment that if the mother is a suitable person to take charge of the
child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years notwithstanding the fact that the father remains as
the natural guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090, wherein in the facts and circumstance of
the case, the custody of the daughter (even though she was more than 13 years of age ) and that of the youngest minor son, was considered to be more beneficial with the wife rather than with the husband.
The appellant submitted that during the child’s growing years, she had from out of her own professional income, provided her with amenities which a growing
child needs, including admission and tuition fees for the child’s schooling in a good school and for extra-curricular activities. The appellant submitted that she had made fixed deposits for the benefit of the minor and had even taken out life insurance policies where the minor child had been made the nominee. The appellant submitted that apart from the above, she had also made various financial investments for the benefit of the minor so that the minor child would not be wanting in anything if she was allowed to remain with the appellant.
The appellant submitted that although she had been granted visitation rights by the different interim orders, since she was residing in Calicut and the  respondent was residing in Thrissur, she was unable to remain in contact with her minor daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained of the fact that on several occasions when she had gone to meet her minor child at the residence of the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The appellant submitted that the interest of the minor child would be best served if her custody was given to the appellant.
The claim of custody of the minor child made by the appellant was very strongly resisted by the respondent who denied all the various allegations levelled against him regarding his alleged apathy towards the minor and her development. It was submitted on his behalf that till the age of 7 years, the child had been living with both the parents, and was well cared for and looked after during this period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by the appellant who left her matrimonial home on 26th February, 2000 without informing the appellant who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn that the appellant had removed the child to Calicut that the
respondent was compelled to file a Habeas Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the application under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu Minority and Guardianship Act, 1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut, thereby depriving the respondent of the minor child’s
company, the said minor during her interview by the learned Judge of the Family Court at Thrissur made her preference to be with the father known to the learned Judge.

On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child was attaining the age of puberty, the respondent had
arranged with his elder sister, who was a retired headmistress of a school, to come and stay with him and to attend to the minor’s needs during her growing years when she required the guidance and counselling of a woman. It was submitted that the said aspect of the matter was duly considered by the Family Court as well as by the High Court on the basis of an affidavit filed by
the respondent’s sister expressing her willingness to stay with the respondent to look after the minor child.In addition to the above, it was submitted on behalf
of the respondent that the Court had found on evidence that he had sufficient finances to look after and provide for all the needs of the minor child. In any event, what was of paramount importance was the welfare of the minor and the court had also taken into consideration the preference expressed by the minor in terms of Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that the respondent was quite alive to the fact that the minor
child should not be deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit the minor child either at the respondent’s house or in some neutral place and to even keep the child with
her on specified days if she was ready and willing to stay with the appellant. What was sought to be emphasized on behalf of the respondent was that in the interest oF the child she should be allowed to remain with him since he was better equipped to look after the minor, besides being her natural guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child
and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl,
without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in
school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.We have also considered the various decisions cited by the appellant which were all rendered in the special facts of each case. In the said cases the father
on account of specific considerations was not considered
to be suitable to act as the guardian of the minor. The
said decisions were rendered by the Courts keeping in
view the fact that the paramount consideration in such
cases was the interest and well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No Allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor.

We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at Thrissur on 20.3.2001 while disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act, 1890 with the following modifications:-

1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in extra-curricular activities as well.

2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making such contribution.

3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house
or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.

4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be
entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.

5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.

6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled
between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances.

The parties will each bear their own costs.

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