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CASE NO.:

Special Leave Petition (civil) 4230-4231 of 2003

PETITIONER:

Kumar V. Jahgirdar

RESPONDENT:

Chethana Ramatheertha

DATE OF JUDGMENT: 29/01/2004

BENCH:

Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT:

JUDGMENT

Dharmadhikari J.

In these two appeals, the subject matter of dispute between the

married couple, now separated by decree of divorce obtained on

mutual consent under the provisions of Hindu Marriage Act, 1955, is

their rival claim to the exclusive custody of their daughter \026 Aaruni

who is now little above 9 years of age and is prosecuting her education

in a well-known school in the city of Bangalore where the parties

reside.

After obtaining divorce on mutual consent, the wife \026 Smt.

Chethana Ramatheertha is re-married to Mr. Anil Kumble, a Cricketer

of national and international repute. The Family Court of Bangalore by

its judgment dated 20.4.2002, after considering the evidence led by

the parents of the child, came to the conclusion that as the wife is re-

married to a famous cricketer and is leading a different style of life

involving frequent tours with her second husband for attending cricket

events, there is likelihood of child developing distance and dislike for

her natural father. The exclusive custody of the child was directed to

be given to the natural father with only right of visitations to the

mother on every week on Sunday between 10 A.M. to 8 P.M. and to

keep the child with her overnight on two Sundays in a month with

prior intimation to her former husband.

The High Court, in appeal, by its impugned judgment dated

27.1.2003, has, however, taken a different view and reversed the

judgment of the Family Court. On the basis of evidence on record, the

Division Bench of High Court has formed an opinion that in the

absence of compelling reasons and circumstances, the mother cannot

be deprived of the company of the child to the detriment of the

interest of the child. The High Court, therefore, set aside the judgment

of the family court and directed that the mother should continue to

retain exclusive custody of the child with visitation rights to her former

husband. The former husband is allowed to keep the child on week

ends either on Saturday or Sunday from morning till evening and he

can also be with the child during half the period of vacations in the

school. The stay of child with each of them during half of the

vacations, is to be shared by the two parents under mutual

agreement. The father is also allowed to visit the child as and when he

likes with the prior intimation and mutual arrangements with the

mother. The parties are also given liberty to seek necessary

modifications in the arrangement evolved by the High Court.

For deciding the controversy regarding the custody of the child,

only few more facts are relevant and required to be stated.

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The parties were married in the year 1986 at Mysore and had a

married life for more than 12 years. The child \026 Aaruni was born to

them on 07.12.1994. When the child was little about two years old,

the wife took a job in Trans Oceanic Travels. Their marriage broke

down in the year 1998 when the wife left her matrimonial home and

sent a notice through her lawyer that she was unwilling to live with her

husband. On a joint petition, filed by the parties in the Family Court for

dissolution of marriage by mutual consent, a decree of divorce was

passed on 17.4.1999. The separated parents, in accordance with the

conditions of divorce by consent, agreed to their appointment as joint

guardians with periodic custody of the child. They also agreed to keep

the child alternatively in every week. As per the mutual arrangement

agreed between the couple, the wife took custody of the child for a

week in the year 1999. She soon thereafter got re-married to famous

cricketer \026 Mr. Anil Kumble on Ist July, 1999 and went out of the

country with her second husband leaving the child under the custody

of her former husband. On return from abroad with her second

husband, she filed an application in the Family Court on 12.8.1999

seeking exclusive custody of the child. The Family Court rejected her

application and the High Court, in revision, only granted liberty to the

parties to approach the Family Court for alteration or modification of

the terms of consent decree of divorce. Thereafter, the wife moved a

petition again to the Family Court for altering the conditions of divorce.

During pendency of those proceedings, with the permission of the

Family Court, she took the child with her while on tours with her

second husband.

A counter application was filed by the present petitioner/her

former husband \026 Shri Kumar V. Jahgirdar for exclusive custody of

the child on the ground that he being the natural guardian and having

remained unmarried with sole aim to bring up the child in congenial

atmosphere was better suited to be entrusted with her custody. It was

stated that the re-marriage of the wife is detrimental to the welfare of

the child.

The wife from her side filed repeated applications in Family Court

seeking permission to take the child to foreign countries on tours with

her second husband. The Family Court granted such permissions but

on certain conditions.

The wife went up by revision petition to the High Court and the

High Court directed that the child should be placed in the custody of

mother for a continuous period of one year. When the present

petitioner/her former husband appealed, this Court, after hearing the

learned counsel appearing for the parties, by order dated 18.4.2003

made an interim arrangement pending final orders on the pending

applications of the parties before the Family Court, Bangalore. The

mother was allowed to retain custody of the child with visitation rights

granted to the former husband every week on Saturday and Sunday.

It was also directed that during pendency of the cases before the

family court, if the mother is required to go out of the country, she will

not carry the child with her but leave the child in the custody of her

former husband during her absence. The family court was directed to

decide the case within four months.

The family court in its judgment dated 20.4.2002 granted

exclusive custody of the child to the former husband with only right of

weekly visitations to the mother on the grounds inter alia that the

mother is re-married to a famous cricketer whereas the former

husband is still unmarried and his nature of business as a Stock

Broker is such that he is able to give required attention to the rearing

of the child. The family court also, on the basis of apprehensions

raised in evidence on behalf of the former husband, came to the

conclusion that custody of child with natural father would rule out

possibility of attempts on the part of the mother and her second

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husband to induce or create ill-will in the mind of the child towards her

natural father. The family court also recorded that during long periods

when the girl child lived with her natural father, she herself expressed

satisfaction and happiness.

The wife appealed against the judgment of the family court to

the High Court. The child was interviewed twice by the Hon'ble Judges

of the High Court on 20.11.2002 and 05.12.2002. On the basis of

interviews with the child who is school going and aged about 9 years,

the High Court recorded in its judgment that the child expressed no

dislike or negative feelings towards any of her natural parents or her

step father. The High Court after examining the evidence on record

and interviewing the child, came to the conclusion that in the absence

of any compelling or adverse circumstances, the natural mother

cannot be deprived of the exclusive custody of a growing female child.

The judgment of the family court has been upset by giving exclusive

custody of the child to the natural mother with visitation rights on

week ends to the natural father on timings mentioned in the order.

Aggrieved by the order of the High Court, the former husband is, in

appeal, before us.

Learned senior counsel, Shri S.S. Javali appearing on behalf of

the petitioner/former husband took great pains by taking us through

the record of the case and particularly the relevant parts of the

depositions of the estranged couple and the second husband of the

wife. He severely criticised certain general remarks and statements

made by the High Court in the impugned judgment such as that

'mother has an absolute right to keep company of the child unless

deprivation of it is required for compelling reasons'. It is argued that

such an erroneous approach on the part of the High Court, has

resulted in upsetting a just and very well-reasoned judgment of the

family court.

From the arguments advanced on behalf of the former husband,

what we have been able to gather as more important circumstances

set up against allowing the wife to retain the custody of the child inter

alia are that the wife is re-married to a cricket celebrity and has a

style of life which requires frequent foreign tours, exposure to public

life and media. There is also possibility of the child being brain-washed

to keep distance from the natural father. On the behaviour of the child

during her interviews on two occasions, as has been recorded by the

High Court Judges, submission made is that it might have been so due

to psychological counselling given to the child. It is stated that during

one of her interviews, a psychologist was found to be accompanying

her to the court before she child entered the Chamber of the Judges

for interview. On behalf of the wife, the learned counsel stoutly denied

any such happening during hearing in court.

On behalf of the former husband, learned counsel then very

strenuously submitted that his client has remained unmarried with one

single aim to rear and bring up his child in a congenial atmosphere of

love and affection which he alone can guarantee. In the present status

and style of life of his former wife, it is submitted that the former

husband was rightly held by the family court to be a preferable parent

to keep custody of the child. The father is also financially well-off and

has already acquired movable and immovable properties as also

deposited cash in the name of the child to ensure best of care and

education to her.

We have also heard learned senior counsel, Shri Gopal

Subramanium appearing on behalf of the wife, who has supported the

impugned judgment of the High Court and submits that the past

conduct of the wife and her second husband throughout the

proceedings in these cases belies the apprehension of the former

husband that the child's mind would be poisoned against him. The

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apprehension is stated to be completely baseless and imaginary.

Learned counsel assures on behalf of Mr. Anil Kumble, the second

husband of the wife, that he would continue to extend same love to

the child and cooperation to the natural parents as he has been doing

throughout in the past so that the child gets the best of care, affection

and education for her proper upbringing. It is submitted that as has

been desired by the High Court with the conditions imposed in its

orders, the parties would faithfully and sincerely continue with the

existing arrangement without any detriment to their mutual interests

and the interest of the child.

After hearing the learned counsel appearing for the parties at

sufficient length and having bestowed our careful consideration to the

observations and conclusions reached by the family court and the High

Court in their respective judgments, we do not find any ground to

substantially upset the judgement of the High Court containing the

arrangements made therein for the custody of the child and the rights

of visitation granted to the natural father.

We make it clear that we do not subscribe to the general

observations and comments made by the High Court in favour of

mother as parent to be always a preferable to the father to retain

custody of the child. In our considered opinion, such generalisation in

favour of the mother should not have been made. We, however, do

not find that the judgment of the High Court is based solely on one

consideration that between two parents, the mother always can claim

superior right to retain the custody of the child. The High Court has

taken into consideration all other relevant facts and circumstances to

come to the conclusion that female child of growing age needs

company more of her mother compared to the father and remarriage

of the mother is not a disqualification for it. The conclusion of the High

Court seems to be just and proper in safeguarding the interest of the

child.

Without going into the allegations, counter allegations and

misapprehensions expressed against each other, on the paramount

consideration of best safeguarding the interest of the child, in our

opinion, the judgement of the High Court giving exclusive custody of

the child to the mother and visitation rights to the natural father

deserves to be maintained with little modification for the following

reasons :-

1. The child is, at present, 9 years of age and on advent of puberty.

This is the age in which she requires more care and attention of the

mother. Mother, at this age of the child, deserves to continue to

keep the custody of the female child. She is reported to have given

up her service and now leading life of a house-wife. The progress

report of Aaruni from the Sophia High School, Bangalore, indicates

that she is very good at studies and has a bright educational career.

2. It is reported that the wife is presently on the family way. The

prospect of arrival of the second child in the family of the wife is

another circumstance which would be in favour of the present child.

3. The petitioner lives alone with his father. There are no female

members living jointly with him although he may have female

relations in the city but that would not ensure constant company,

care and attention to the female child.

4. The petitioner/natural father is a busy Stock Broker allegedly

carrying on his business with aid of on-line computer but it cannot

be said that in the course of his business, he has not to remain out

of residence for attending his office and other business

engagements.

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5. The apprehension expressed against the second husband that he

might poison the mind of the child and create ill-will towards

natural father is not borne out from the evidence on record. On the

contrary, the second husband in his deposition has made

statements evincing a very cooperative and humane attitude on his

part towards the problem of the estranged couple and the child. We

find that apprehension expressed against the second husband is

without foundation. The parents of the child have separated by

mutual consent without making any vicious allegation against each

other. They also agreed under the express terms of the consent

decree of divorce to take responsibility of bringing up their child as

her joint guardians. This gesture of decency and cooperation in

jointly looking after the child has to continue. In this mutual

agreement of separated couple, on behalf of second husband, it is

assured to us that he would continue to give his unreserved

cooperation and help and would do nothing as to spoil the

relationship or intimacy of the child with the natural father.

6. The visitation rights given to the natural father, in the present

circumstances, also do not require any modification because with

the passage of time, the growing child should eagerly wait for the

company of his father as a happy and enjoyable moment rather

than treat it as a part of empty ritual or duty. To make visitation

rights of natural father effective and meaningful for proper growth

of the child, active cooperation of both the parents and her step

father is expected and we hope it would not be found wanting from

any one of them.

7. Since the mother of the child is married to a famous cricketer, as

and when she leaves the country on tour with her husband during

school days or vacation period of the child without taking the child

with her, in stead of leaving the child to the care and custody of

some other member of the family, the custody of the child during

her absence from her home shall be given to the natural father.

With the above observations and modification, we maintain the

judgment of the High Court. The two appeals are, thus, disposed of. As

all the parties, before us, are highly educated, cultured, of modern

outlook, well-off and having so far conducted themselves decently and

courteously towards each other, we hope, in future as well they will

continue same attitude and conduct for maintaining their cordial

relationships and extend full cooperation in safeguarding the interest

of the child in best possible manner.

Looking to the nature of the case and the position of the parties,

they are directed to bear their own costs and expenses incurred in

these appeals.