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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 and 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:-

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"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 hoilidays

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

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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)\005

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

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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

counsellor 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

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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

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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

hereinbefore, 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

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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

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at this very crucial period of her growing up

In 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

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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

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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.

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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.