REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1553 OF 2017

(ARISING OUT OF SLP (CRL.) NO. 1867 OF 2016)

PURVI MUKESH GADA .....APPELLANT(S)

VERSUS

MUKESH POPATLAL GADA & ANR. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

It is an unfortunate case where the parties, who are wife

and husband, are having a bitter and acrimonious fight over the

custody of their children. Such custody battles are always

regrettable, not only for the spouses who resort to this kind of

litigation, which is the offshoot of matrimonial discord and results

in their separation from each other, but also for their child/children

who become the subject matter of this kind of dispute. Failure of

marriage generally leads to disputes of varied nature, either in the

form of divorce or enforcement of conjugal rights or maintenance

etc. and even criminal cases in the form of proceedings under

Criminal Appeal No. of 2017 Page 1 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

Section 498A of the Code of Criminal Procedure, 1973 and so on.

However, in those cases where their togetherness as spouses

had resulted in procreation of children, the war is extended by

laying respective claims on the custody of those children as well.

These minor children, for their proper upbringing, need the

company of both the parents – mother as well as the father, for

financial reasons, security reasons, psychological reasons, etc.

They need the love of both their parents. Not only separation of

their parents from each other deprives these children 24/7

company of both the parents, when it results in legal battle of

custody in the courts, the situation becomes more traumatic for

these children because of various obvious reasons. That is why

such cases which seriously impact these children are the most

unfortunate.

2)In the instant case, marriage between the parties as per Hindu

rites and ceremonies was solemnised way back in November

1997. They lived together for number of years. Their first child, a

boy named Taney, was born in the year 2000 and second child, a

daughter named Varenya, was born in the year 2004. The

appellant herein left the matrimonial home on February 18, 2013.

Thus, they were together for more than fifteen years when the

Criminal Appeal No. of 2017 Page 2 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

desertion took place, though as per the allegations of the

appellant she had suffered mental and physical torture at the

hands of the respondent since the beginning of the marriage, but

for the sake and well being of the children and also because of

her financial dependency on the respondent she continued to live

with the respondent. These allegations of maltreatment of the

appellant are denied by the respondent. In any case, that is not

the crux of the matter.

3)It so happened that when the appellant left her matrimonial home

in Pune and came to her parents house in Mumbai, children

remained in the custody of the respondent. Tanay was not at

home as he was studying in a boarding school at Coimbatore at

that time. Insofar as Varenya is concerned, the allegation of the

appellant is that it is the respondent who did not allow the

appellant to take her along to Mumbai. Some attempts were

made thereafter for settlement of their disputes, which did not

bear any results. On September 18, 2014, the appellant filed a

domestic violence case in the 38

th

Court of Additional ACMM,

Ballard Estate, Mumbai on the ground of gross mental and

physical cruelty, including verbal and physical abuse and occult

practices. Three months after filing the said case, the appellant

Criminal Appeal No. of 2017 Page 3 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

moved an application therein praying for access to her minor

children during Christmas vacation, which was allowed to be

availed of in the respondent’s house in Pune.

4)In February 2015, Varenya was also admitted in a boarding

school by the respondent. The appellant, at that juncture, moved

an application for interim custody of the minor children as well as

for maintenance. However, custody was not allowed on the

ground that children were studying and it would not be proper to

give custody during the midst of their academic year. At the same

time, interim maintenance @ Rs.30,000/- per month was directed

to be given to the appellant. In May 2015, when the summer

vacations were approaching, the appellant filed an application

praying for custody of children for half of the vacations. Though

this application was still pending and no orders passed thereon,

the respondent himself handed over the custody of the children to

the appellant on June 17, 2015. There are divergent stands of

the parties behind such a move on the part of respondent in

voluntarily giving custody of the children to the appellant. As per

the respondent, even when there was no order of the Court, as a

goodwill gesture, he gave custody of the children to the mother

for a period of three days with clear understanding that custody of

Criminal Appeal No. of 2017 Page 4 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

the children would be handed back to the appellant after three

days. On the other hand, the appellant claims that the

respondent entrusted the children to her even when without any

order of the Court, compelled by the circumstance inasmuch as

Tanay had miserably failed in his Grade IX examinations while

studying in the boarding school at Coimbatore and the

respondent wanted the appellant to give coaching to him so that

he could reappear and pass the examination in order to get

promoted to Grade X without wasting an academic year.

5)The children were not given back to the respondent after the

expiry of three days. Here again both the parties have their own

version. According to the appellant, the children themselves

refused to go back to the respondent. On the other hand, the

respondent maintains that it is the appellant whose intentions

became bad and, thereby, she refused to handover the custody of

the children to him. Be that as it may, the respondent filed an

application before the Court of Additional ACMM for restoration of

custody of the children. The learned Additional ACMM called

both the children in his Chambers and interacted with them.

Thereafter, he passed the orders dated July 01, 2015 vide which

custody of the children was given to the appellant, rejecting the

Criminal Appeal No. of 2017 Page 5 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

request for restoration of their custody to the respondent. Appeal

was filed against this order in the Sessions Court, which was also

dismissed vide judgment dated August 06, 2016. Orders of the

learned ACMM dated July 01, 2015 and that of the Sessions

Court dated August 06, 2015, were challenged by the respondent

in the form of writ petition filed in the High Court of Bombay.

Disposing of this writ petition vide judgment dated February 17,

2016, the High Court has directed that custody of the children be

restored with the respondent. It is this order which is the subject

matter of challenge in the instant appeal.

6)Before stating the reasons which prevailed with the High Court in

directing the custody of the children to the respondent, it is

imperative to take note of certain proceedings before the High

Court during the pendency of the writ petition.

7)Vide order dated January 29, 2015, the High Court directed day

access on September 21 and 24, 2015. Again vide order dated

November 11, 2015, overnight access for the coming weekend

was accorded to the respondent. Identical overnight access was

given by the High Court vide order dated November 23, 2015.

However, the respondent could not avail the benefit of these

orders. According to the respondent, the appellant had violated

Criminal Appeal No. of 2017 Page 6 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

these orders, whereas the appellant has pleaded that on

September 24, 2015 the respondent himself did not come to have

the access of the children and insofar as order granting overnight

access during weekends is concerned, the explanation of the

appellant is that it is the children who refused to go to their father

as they were petrified and, therefore, themselves took such a

decision.

8)On December 11, 2015, the respondent was given seven days

access during Christmas vacation with Counsellor’s help. For

carrying out this order, the trial court called the children on

December 23, 2015 where the respondent was also called.

Again, as per the appellant’s version, the children, after remaining

with the respondent for forty five minutes alone, ultimately told

him that they did not wish to go with him. The respondent was to

come to pick the children on December 25, 2015 and as per the

appellant, he did not come to pick the children.

9)The respondent maintained that on all the aforesaid occasions it

is the appellant who had refused to handover the custody to him

and had, thus, violated the orders of the High Court. Accordingly,

he filed an affidavit in the High Court for initiating contempt

proceedings against the appellant. The appellant filed reply

Criminal Appeal No. of 2017 Page 7 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

affidavit thereto refuting the allegations. Matter was finally heard

and culminated in the judgment dated February 17, 2016.

10) With this, we come to the reasons which have weighed with

the High Court in directing the custody of the children to be given

to their father, namely, the respondent. After perusing the

impugned judgment, these are summarised as below:

(i)Orders dated December 28, 2014 and March 04, 2015 were

passed by the Additional ACMM, confirming the custody of

the children with the respondent-father inasmuch as by

these orders prayer for giving interim custody of children to

the appellant-wife was rejected. Instead, the appellant was

only given limited access during vacation to meet the

children in the school at Pune whenever she desired.

(ii)Even though the appellant had moved application dated

May 27, 2015 seeking access to the children during

vacation, which was from June 13, 2015 to August 09,

2015, and no orders were passed in the said application, as

per the respondent, as a humanitarian gesture and without

there being any legal obligation or court directions, he went

to the appellant’s residence at Mumbai on June 17, 2015

and left the children with the appellant with a clear

Criminal Appeal No. of 2017 Page 8 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

understanding that he would pick them up by June 19,

2015. The High Court has noted the stand of the appellant

as well, but has mentioned that as per the respondent’s

case when he went to take the custody of the children on

June 19, 2015, the appellant refused to restore the custody.

The High Court has given weightage to the fact that on

June 17, 2015, the respondent had placed the children in

the custody of the appellant even when there was no court

order or legal obligation.

(iii)The High Court wanted to interact with the children in order

to ascertain their wishes as well as to determine as to which

course of action is appropriate in the welfare of the children.

However, before doing so, the High Court deemed it

appropriate to grant weekend access to the respondent.

For this, directions were given (which have already been

taken note of). As per the High Court, prima facie it

appeared that the appellant was responsible for

non-compliance of those orders and even if it is to be

believed that the children did not show their unwillingness to

go to their father, it indicates the extent of influence exerted

by the mother upon her minor children.

(iv)As per the High Court, in the face of two detailed orders

Criminal Appeal No. of 2017 Page 9 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

dated December 28, 2014 and March 04, 2015 passed by

the Additional ACMM declining custody of minor children to

the appellant and allowing the respondent to retain their

custody, there was no reason not to restore the custody to

the respondent on June 19, 2015. It has observed that

subsequent orders of Additional ACMM declining to give the

custody, which is upheld by the Sessions Court, are without

application of mind.

(v)The High Court has discussed the law on custody of

children and explained the ‘welfare principle’, which is the

paramount consideration while deciding custody matters is

to see where the welfare of children lies. Applying this

principle, the direction is given to restore the custody of the

children to the respondent after the end of academic term in

April or May 2016.

11) We may say at the outset that though the ‘welfare principle’

is correctly enunciated and explained in the impugned judgment,

no reasons are given as to how this principle weighed, on the

facts and circumstances of this case, in favour of the respondent.

Instead two main reasons which have influenced the High Court

are: (i) earlier detailed orders are passed by the Additional ACMM

Criminal Appeal No. of 2017 Page 10 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

allowing the respondent to retain the custody; and (ii) the

appellant here had not given access of children to the respondent

even during weekend, in spite of orders passed by the High

Court.

12) After hearing the counsel for the parties at length, we are of

the opinion that the matter is not dealt with by the High Court in

right perspective. Before supporting these comments with our

reasons, it would be apposite to take note of certain

developments from June 17, 2015, the date on which the

respondent had himself handed over the children to the appellant,

till the passing of the orders by the High Court. It is also

necessary to state the events which took place during the

pendency of these proceedings.

13) Whether the respondent had handed over the custody of

the children to the appellant on a humanitarian gesture or not,

fact which is not in dispute is that Tanay had failed in his Grade IX

examinations and he was to reappear for the same. It is also a

fact that it is the guidance and tuition of the appellant that Tanay

passed the examinations on reappearance and could be

promoted to Grade X. Another fact which needs to be noted here

is that when the appellant left the matrimonial home, Tanay was

Criminal Appeal No. of 2017 Page 11 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

not residing with the parties. He was admitted in a boarding

school in Coimbatore, a far-away place from Pune. No doubt, the

respondent claims that intention in admitting Tanay in a boarding

school in Coimbatore was that he should get best education as

the school in which he was admitted is a prestigious educational

institution. At the same time, it is also a fact that Tanay was not in

the physical company of his father on day-to-day basis. It is also

a harsh reality that he was not doing well in studies during the

period his legal custody was entrusted to the respondent. His

overall performance in most of the subjects was dismal and he

had even failed in Grade IX. At that stage when, within few days,

there was a re-examination, handing over Tanay, along with

Varenya, to the appellant, without even any court order, lends

credence to the version of the appellant that the purpose was to

give appropriate tuition to Tanay by the appellant so that his

academic year is not wasted. Another fact which needs to be

emphasised at this stage is that though the custody of Varenya

was also with the respondent and request of the appellant to

hand over interim custody of the children did not prevail with the

Additional ACMM who rejected this request vide orders dated

December 28, 2014 and March 04, 2015, even Varenya was

admitted in a boarding school by the respondent thereafter. This

Criminal Appeal No. of 2017 Page 12 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

fact also gives some credence to the version of the appellant that

because of his pre-occupation in the business or otherwise, the

respondent was not in a position to take personal care of the

children and, therefore, he put both of the children in the boarding

schools.

14) After the children came to the appellant, they were admitted

in a school in Mumbai. It is pertinent to note that Tanay’s

academic performance has improved significantly. He is getting

very high grades in the examinations. In fact, academic

performance of Varenya has also gone up. This factor, though

noted by the High Court, has been lightly brushed aside with the

observations that if the children were not doing well earlier, blame

cannot be put on the respondent as it could be the result of

disputes between the parents. In the process what is ignored is

that in spite of the said dispute still subsisting, the academic

performance of the children, while in the custody of their mother,

has gone up tremendously.

15) When the special leave petition had come up for hearing, on

the first day itself the respondent had appeared through his

counsel as a caveator. Children were also brought to the Court

and this Court interacted with them. While issuing the notice,

Criminal Appeal No. of 2017 Page 13 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

based on the interaction with the children, who desired to remain

with their mother, directions contained in the impugned judgment

were stayed. At the same time, the respondent was given access

to these children as well as visitation rights. Notice was issued

on March 04, 2016. During the period of pendency of these

proceedings for more than a year, the respondent has met the

children regularly with the grant of visitation rights. This Court,

just before final hearing, again met the children. Tanay is

seventeen years of age and Varenya is thirteen years old. At this

age, they are capable of understanding where their welfare lies.

This Court has found that both the children are very comfortable

in the company of their mother. They have expressed their desire

to stay with their mother. This Court also feels that welfare of the

children lies by allowing the appellant to retain the custody of the

children. Circumstances explained above provide adequate

reasons for taking this course of action. Children at discernible

age of seventeen and thirteen years respectively, are better

equipped, mentally as well as psychologically, to take a decision

in this behalf. It would be worthwhile to mention that during our

interaction with these children, they never spoke ill of their father.

In fact, they want to be with the respondent as well and

expressed their desire to remain in touch with him and to meet

Criminal Appeal No. of 2017 Page 14 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

him regularly. They never showed any reluctance in this behalf.

At the same time, when it came to choosing a particular parent for

the purposes of custody, they preferred their mother. In fact,

these were the reasons because of which the Additional ACMM

had passed orders dated July 01, 2015 (after interviewing the

children and ascertaining their wishes as well as welfare)

rejecting the request of the respondent to restore custody to him.

Same course of action was adopted by the learned Sessions

Court while dismissing the appeal of the respondent on August

06, 2015 and affirming the order of Additional ACMM dated July

01, 2015. The High Court has discarded these orders without

giving any cogent reasons and on the spacious and tenuous

ground that such orders could not have been passed in view of

the earlier detailed orders of the Additional ACMM dated

December 28, 2015 and March 04, 2015, thereby refusing the

custody of the children to the appellant. In this process, what is

ignored by the High Court was that even those were interim

orders and the custody was refused at that juncture because of

the reason that children were in the mid-term of the academic

session. Be that as it may, it was incumbent upon the High Court

to find out the welfare of the children as on that time when it was

passing the order. As pointed out above, apart from discussing

Criminal Appeal No. of 2017 Page 15 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

the ‘welfare principle’, the High Court has not done any exercise

in weighing the pros and cons for determining as to which of the

two alternatives, namely, giving custody to the appellant or to the

respondent, is better and more feasible.

16) Learned counsel for the respondent had made a fervent

plea to the effect that if custody is retained by the appellant, it

would amount to giving her advantage of her own wrong as she

took undue advantage of the gracious act of the respondent in

voluntarily handing over the custody of the children, but only for

three days. He also highlighted the conduct of the appellant, as

discussed by the High Court, which has castigated the appellant

in this behalf in not obeying the interim directions of giving access

to the respondent.

17) In view of our aforesaid discussion, we do not find these

arguments to be meritorious. It also needs to be emphasised that

the Court, in these proceedings, is not concerned with the dispute

between the husband and the wife inter se but about the custody

of children and their welfare. A holistic approach in this behalf is

to be undertaken. Scales tilt in favour of the appellant when the

matter is examined from that point of view.

Criminal Appeal No. of 2017 Page 16 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

18) As a result, this appeal is allowed, resulting in setting aside

of the impugned order dated February 17, 2016 passed by the

High Court in the writ petition and restoring the order dated

August 06, 2015 passed by the Court of Sessions, Greater

Mumbai, which affirmed the order dated July 01, 2015 passed by

the Court of 38

th

Court of Additional ACMM, Ballard Estate,

Mumbai. At the same time, weekend access given to the

respondent by interim directions of this Court shall continue to

prevail. Moreover, during Dussehra, Diwali, Christmas or

summer vacations etc., the respondent shall be entitled to avail

the custody for half of the durations of those vacations. However,

while effecting this arrangement, it shall be ensured that studies

of the children are not affected. In case of any difficulty in

working out the aforesaid modalities, the parties shall be at liberty

to approach the trial court. Since the custody of the children is

allowed to be retained by the appellant-mother, domicile

certificates of the children as well as their passports which are

with the respondent, shall be handed over to the appellant.

No costs.

.............................................J.

(A.K. SIKRI)

.............................................J.

(ASHOK BHUSHAN)

Criminal Appeal No. of 2017 Page 17 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

NEW DELHI;

SEPTEMBER 4, 2017.

Criminal Appeal No. of 2017 Page 18 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)

ITEM NO.1501 COURT NO.6 SECTION II-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s).1553/2017

PURVI MUKESH GADA Appellant(s)

VERSUS

MUKESH POPATLAL GADA & ANR. Respondent(s)

([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])

Date : 04-09-2017 This matter was called on for pronouncement

of JUDGMENT today.

For Appellant(s) Ms. Kamini Jaiswal, AOR

For Respondent(s) Mr. Baij Nath Patel, Adv.

Ms. Sweta, Adv.

Mr. Chanchal Kumar Ganguli, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the

judgment of the Bench comprising Hon'ble Mr. Justice

Ashok Bhushan and His Lordship.

Appeal is allowed in terms of signed Reportable

Judgment.

Pending applications, if any, stand disposed of.

(B.PARVATHI) (MALA KUMARI SHARMA)

COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)

Criminal Appeal No. of 2017 Page 19 of 19

(arising out of SLP (Crl.) No. 1867 of 2016)