Child Custody battle

Flash Dharna on Saturday @Town Hall, Bangalore to protest Law Commission reccomendation

2011-06-29T00:10:00.001-07:00

NFHS is organizing Flash Dharna to protest Law Commission reccomendation to make 498A IPC compoundable which will increase Legal Extortion and Legal Terror.
If Criminal cases are allowed to be compounded then only rich and mighty people will compound their cases and there will be no fear of commiting crime.
This will become a mockery of Criminal Justice System.
E.g. a person can do murder and offer "settlement amount" to his relatives.

Venue: Town Hall, Bangalore
Timing: 9.30 AM to 11 AM coming saturday - 2nd July

Press Release for Father's Day Rally by CRISP - 18-Jun-2011 - Town Hall Steps, Bangalore

2011-06-11T10:28:00.000-07:00

CRISP is an NGO formed in 2008, by people who recognize the serious effects of Parental Alienation of children due to single parent families on account of divorce or separation. CRISP fights against alienation of children from their parent(s) in the ever increasing divorce/ separation rates in the social realities of our contemporary society. CRISP also focuses on furthering the rights of children to remain connected with both biological parents. We are a pro-family and a pro-life organization, our aims and objectives are to promote family harmony in our society and are based on research findings. We are a large group of people from all walks of life, like software engineers, doctors, teachers, businessmen, social workers, etc. which includes women and senior citizens, to address this burning issue in our society.

CRISP has organized National Father's Day Rally on Saturday, the 18th June, 2011 between 10:00 AM and 1:00 PM at TOWN HALL STEPS, JC ROAD, Bangalore, to demand FAMILY LAW REFORMS, highlight the grievances of Fathers deprived of access to their children and children to their fathers due to biased laws and failure of our judicial, legislative and executive systems on all fronts on this sensitive matter and a serious human rights issue, this protest dharna is on behalf of our children, who are voiceless victims & protect their rights to be connected to both biological parents.

Father's Day is celebrated worldwide to honor the contribution of ‘Fathers’. In India also the Father's day is being celebrated since many years as an expression of love and tribute to the Fathers. Present day fathers are actively involved in parenting their children in every way and in all spheres of their development. In the changed scenario of our family system, especially in cities the role of the father is paramount and must be recognized equally along with the Mother. Shared parenting is the only solution for the normal growth of children whose parents are separated.

Divorce rates are unfortunately going up substantially (over 30% and increasing) year on year, especially in educated & urban class people. There are more than 17,000 cases in the Family Courts of Bangalore alone, pending disposal and lakhs of cases still pending in various cities in our country. CRISP is concerned with the growing custody battles between the parents and the ill effects on the children due to their parents' separation. We speak for the rights of the innocent impacted Children who are deprived of the love and affection of both their natural parents and shared parenting is the only alternative arrangement to spend quality time with both its natural parents, since parents divorce is inevitable in the present day world & lifestyle of people

The traditional Indian Value system has undergone a sea change from the olden days where the mother was the nurturer and the father a provider to the child. Present day fathers are actively involved, physically and emotionally in parenting children and are equally competent in taking care of the needs of the child and take on the responsibilities of child upbringing and are in no way inferior to the mother. The anti-father mindset is not valid, but still persists in our archaic and cruel systems. Typically in divorce and separation cases, one of the parents, out of revenge against the other parent deprives the child of the love, affection and care of the other parent. This is one of the worst forms of child abuse, as the children suffer the consequences of permanent psychological damage from resulting disorders like Parental Alienation Syndrome (PAS) and Reactive Associative Disorders that warp a child’s development. Studies have shown that there is a tendency for such children to become criminals in their later years, for which the society and our system are directly responsible. Please see CRISP website http://www.crisp-india.org for details.

Speakers for the press conference are:

· Kumar V Jahgirdar (President) - 98452 64488

· Sivakumar Challa (Secretary)

· Jayanth T.K (Counselor)

· Avinash Kumar (Counselor)

· Roshni Mathan (Social Activist)

Kumar Jagirdar's child custody battle - 01-Jun-2011 news update

2011-06-01T09:54:00.000-07:00

After family court granted Kumble custody of child, biological father approached HC questioning the order, which in turn directed issuance of emergency notice to the former cricketer. Imran Gowhar reports
The decade long legal battle over custody of a child between Anil Kumble's family and the child's biological father Kumar Jagirdar continues, as the latter approached the High Court questioning the family court order.
Based on the HC's direction, an emergency notice has been issued to the respondents and the next hearing will be held following their response.

In his petition, Jagirdar contended that the family court, over sighted Supreme Court while passing the order dated January 29, 2004. The SC observed that the prospect of the arrival of a second child in the respondent's family is another circumstance, which would be in favour of the child.

Basis of questioning
However, after the birth of the second and thereafter the third child, the respondent (Chetana) and her present husband (Anil Kumble) had become non-cooperative in implementing the Apex Court's directions.

Further, Jagirdar, who had no other children through his second wife, could have bestowed his undivided attention, natural love and affection, as against the respondents who was busy and preoccupied with bringing up their two infant children, which would result in the neglect of the appellant's only daughter.

The Family Court earlier rejected Jagirdar application stating that he was not entitled to custody on the ground that there was no female member living with him to look after the child. Considering this, Jagirdar married Dr Savitha, despite which custody was rejected citing 'stepmother' as the reason.

No contact
Jagirdar further contended that the court did not allow him any contact with his daughter for five months before she was called to testify before the court, while deciding on custody.

"During this period, the respondents constantly brainwashed and tutored the child to get the order in their favor. Based on the child's deposition, the court decided to handover the custody rights to Kumble and even passed derogatory remarks against me," Jagirdar said.

Reacting to this, the Kumble's advocate C V Nagesh said that they are ready to face the challenge.

"Litigation is like two faces of a coin. Had we been in the appellant's position, we too would have approached the HC if we had lost the case. However this will ultimately serve no purpose and its unfortunate that the child has to bare the brunt," Nagesh said.

Source : http://www.mid-day.com/news/2011/jun/010611-Anil-Kumble-child-custody-case-Kumar-Jagirdar-Bangalore.htm?utm_source=feedburner

MASSIVE PROCESSION CONCLUDED BY DHARNA ON 04-06-2011 by NFHS

2011-05-26T23:50:00.000-07:00

MASSIVE PROCESSION CONCLUDED BY DHARNA ON 04-06-2011 – BANGALORE

PROCESSION CONCLUDED BY DHARNA on 04-06-2011 by National Family Harmony Society® to protest against heavy misuse of Domestic Violence Act.

About National Family Harmony Society®: “National Family Harmony Society®” NFHS is a Non Governmental Organization (NGO) promoting the cause of “family harmony” and “gender equality”. It is registered under “The Karnataka Societies Registration Act, 1960” and is based in Bangalore. We have branches in more than 16 states and in abroad too. We have approximately 16000 members all over India. To know more about us please visit www.family-harmony.org / www.498a.org.in / http://498amisuse.wordpress.com/

Details of the Event

Procession starting at Town Hall @9.30 AM

Procession concluding at Banappa Park @10.15 AM

Dharna at Banappa Park 10.15 AM – 12.00 Noon

We request all members who participate in the procession to maintain discipline.

Kindly reach the start point of the procession on time so that there is good strength for procession.
The procession is a “silent protest” and there will be no slogan shouting.
However at the Dharna we are free to shout slogans.
To protest against the injustice by the Government we plan to tie black ribbon around mouth to symbolic show that MEN facing injustice are not even being allowed to speak out.
The Theme of the protest is Gandhi Ji’s 3 Monkeys!!
Judiciary – They are turning a blind eye to the injustice, saying they are law implementers and not law makers.
Legislature- Fearing from women vote bank, Legislature is not speaking out even though they know that Gender biased law’s are heavily misused.
Executive- The executive turn away MEN and do not listen to MEN saying “Do not involve us in this and solve your problem in the court”
So, the question is where do MEN GO???
If the 3 main pillars of the democracy have shut their doors on the MEN then we have hope only from the fourth pillar of the democracy i.e. Media.
We appeal all our media friends to help us to spread awareness regarding heavy misuse of the gender biased laws and injustice caused to MEN and his families due to this.
Please save the family and thereby save our great Nation to retain India a “Vasudeva Kutumbaham”.
Jai Hind!!
With profound respects,
For further information please contact.
Suresh P Mahesh M
President, General Secretary
9880141531

Kids bear brunt of divorce - Vanitha Vijaykumar case and CRISP comments

2011-02-03T06:15:00.000-08:00

Court orders tests on Vanitha son
Feb. 2: Playing a proactive role in a child custody case, the Madras High Court on Wednesday directed actress Vanitha’s former husband Akash to take their son Vijay Sri Hari to a doctor at Government Children’s Hospital, Egmore, to determine if the child has any deep-rooted problems or is acting under external influences.
Posting to February 15 further hearing of a petition filed by Akash seeking custody of his son, Justice V. Ramasubramanian directed him to take his son to Dr V. Jayanthini on or before February 6 for an examination. After the assessment, the doctor will send her report to the Registrar General of the court on or before February 14.
“Akash and Vanitha should not cause any kind of interference with the process and if the specialists direct, they must subject themselves to examination. Till a report is filed, they are directed to maintain status quo and not to precipitate matters,” the judge added.
“The case has posed the greatest challenge that I have ever encountered in a child custody case,” the judge said. “For once I found myself at my wit’s end on how to deal with a nine-year old boy.”
“The total aversion he now exhibits towards his biological mother could be the result of either of two extreme situations,” he added. “Either the child suffered some kind of abuse (not in the sense that we normally understand the term child abuse, but in a broader sense) when he was with his biological mother and stepfather or his biological father tutored the child so well that he is refusing to go with his mother.”
“Truth appears to be the worst casualty these days in all family disputes and it appears to lie somewhere between two extremes,” the judge observed.
“To find out where it lies, to the extent that it is humanly possible, I am of the view that the child could be subjected to an assessment by an expert in the field. The object is to help the child overcome the internal struggle and trauma that he has been undergoing for the past few months.”
Victims of tug-of-war
Feb. 1: While growing up in the middle of a bad marriage is trauma, living through a divorce battle is worse for children, especially in a country where the laws are insensitive, say members of the NGO Children’s Rights Initiative for Shared Parenting (CRISP).
“Inter-parental child abduction is considered a crime in many of the countries that have signed the Hague Convention of Child Abduction. But, India is not a signatory to the convention and, hence, has become a haven for parents who turn into child abductors,” says Mr Suresh Ram of CRISP.
Most child custody battles that have are splashed in the media have clearly exposed the inadequacy of the system that prevails in India in preventing child abduction.
“Our judiciary is already overburdened. We are of the strong view that child custody cases should be handled by a separate jury under the National Commission for Child Welfare (NCCW) so that such cases are dealt with sensitivity and are disposed of speedily,” CRISP members said.
The first-of-its-kind organisation was formed by Mr Suresh Jagirdar, who has a decades-long custody battle with his former wife Chetana, who later married cricketer Anil Kumble. “CRISP was started to voice the concerns of the child who is the ultimate sufferer. Today, we have 30,000 members and receive hundreds of calls from across the country every week,” Mr Jagirdar says.
“Our agenda is clear. We are only for shared parenting of the child and strongly believe that both biological parents should play an equal role in the growth of the child.” But, they claim that most cases that go to court receive one-sided verdicts. “Even that verdict does not get honoured. At least, parents should abide by the law and refrain from abducting their own children,” CRISP members said.

Source : http://www.deccanchronicle.com/chennai/kids-bear-brunt-divorce-660

Don’t set rigid terms on child custody: Supreme Court

2011-02-01T08:19:00.001-08:00

The Supreme Court, saying the interest of a child's development should be held paramount in any custody matter relating to a divorce suit between estranged couples, has held that no rigid conditions could be laid in a divorce agreement about a child's custody in view of his or her future development.
The trial court which grants a divorce to the separating husband and wife has the power under Section 26 of the Hindu Marriage Act to change the conditions in a divorce agreement from time to time to protect the interests of the child, the court's highest court said.
While amending conditions, including the father's right to visit the child, the trial court could even take into consideration the views of the child if he or she is of an age to be able to understand issues in the right perspective, an SC bench held.
"The (child) custody orders are always considered interlocutory, and by nature of such proceedings they cannot be made rigid and final, and are capable of being altered and moulded keeping in mind the needs of the child," the court said.

Source : http://www.deccanchronicle.com/chennai/don%E2%80%99t-set-rigid-terms-child-custody-sc-844

Fathers Day 2010 by CRISP

2011-02-01T03:33:00.000-08:00

Please find the youtube link for the Father's day 2010 video by CRISP(Children's Rights Initiative for Shared Parenting) below :

http://www.youtube.com/watch?v=brl9DeeNK38

Mother is not always the Natural Guardian - Kumar Jahgirdar case Judgement

2011-01-28T01:03:00.000-08:00

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: 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 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 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 thejudgment 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.
The parties were married in the year 1986 at Mysore and had a married life for more than 12 years. The child 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 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 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 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 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.
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.

Please post your valuable comments

2011-01-27T02:42:00.000-08:00

Dear Reader,

Please post your valuable comments and suggestions under each blog entry which you like. You can send any child custody realted articles/judgements/suggestions to fathernchild@gmail.com and I will post them in this blog.

Please help me in improving this blog with your valuable suggetions and comments.

Child Custody Under Hindu Law

2011-01-25T04:20:00.000-08:00

Child Custody Under Hindu Law:All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection. The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.
In In Re Kamal Rudra Das J. expressed the same view vividly thus : „,
I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.'
But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody.
In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.' However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare! In Venkataramma v.. Tulsi,' the court disregarded the wishes of the children as it found these to induced by wholesale persuasion and were even tortured.
Custody to third persons. -Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person. In Baby v., Vijay granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.

Factors Considered by the Courts when Granting Custody

2011-01-25T04:18:00.000-08:00

Factors Considered by the Courts when Granting Custody :-

# The welfare of the minor is very broadly defined and includes many diverse factors, notably:
# the age, sex and religion of the minor: courts take into account the personal law of the father). Thewelfare of younger children is generally regarded as being in the mother’s custody;
# the character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers;
# the wishes, if any, of a deceased parent, for example specified in a will;
# any existing or previous relations of the proposed guardian with the minor’s property: courts do not look kindly on guardians seeking custody just in order to have control over the minor’s property. But if, for example, the minor’s property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother’s favour.
# the minor’s preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old.
# whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father.
# whether either/both parents have remarried and there are step-children: Although the mother’s remarriage to someone who is not the children’s close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father’s remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children’s step-mother cannot or will not have her own children.
# whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural’ guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening.
# the child’s comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.

Mother can not prevent dad from meeting their child - Shivkumar Challa's case

2011-01-24T01:06:00.000-08:00

Hearing divorce case, chief justice Khehar rules in favour of husband who was denied visitation rights. But the real drama took place outside the court when the lawyer’s former wife turned up. In what is being seen as a landmark judgment in cases related to divorce and visitation rights of parents on their children, the high court of Karnataka on Tuesday ruled in favour of a husband who was prevented from seeing his son for over 10 months.

In what is being seen as a landmark judgment in cases related to divorce and visitation rights of parents on their children, the high court of Karnataka on Tuesday ruled in favour of a husband who was prevented from seeing his son for over 10 months.

The ruling came on the divorce proceedings of Shivkumar Challa and Madhuri who were married in 1996. Their son Rahul was born in 2000. Madhuri is being represented by James Arun Kumar.

The court berated Madhuri for not following its order to allow her husband to meet Rahul every Sunday.

“We will send you to jail. Do you understand what jail is? You will be sent there right from here. Then your counsel can go to the Supreme Court,” chief justice J S Khehar told a stunned Madhuri in open court.

“Since January, how many Sundays have the father and son met? Not a single Sunday should be missed. Follow the order. If you fail, the following day you should be present in court at 10.30 am to tender an explanation for the same. Jail is a very bad thing. We look upon you as children. But even children should be reprimanded.”

At this point, Madhuri started crying profusely. Seeing this, the chief justice told her, “This is not going to affect us.”

Challa then told the court, “My child’s life is in danger.” But the court told him to stick to the present case, that of child visitation rights.

Source : http://www.bangaloremirror.com/article/10/201011102010111005273150984689fd0/%E2%80%98Mum-can%E2%80%99t-prevent-dad-from-meeting-their-child%E2%80%99.html

Child custody: nothing can come between father and kids, says court

2011-01-21T00:28:00.000-08:00

Nothing can come in the way of children longing for their father’s company, a city court observed while dismissing a plea filed by a woman seeking to prevent her estranged husband from having their children’s custody every weekend.
Sushma (name changed) had appealed against a magistrate’s custody order in the sessions court on grounds that her husband had hired a private detective to track her and, hence, he should not be allowed custody of their two kids.
“The act of the respondent (father) in any manner does not effect the rights of the children to have the love, care and affection of their father,” said Additional Sessions Judge (ASJ) V K Bansal. “Though it has come on record that the respondent had appointed a private detective, who was following the appellant, there is nothing on record to debar the respondent from having the custody of the children,” said ASJ Bansal.
Referring to her husband’s conduct, the woman had alleged that even otherwise the order lacked legality, as there was no provision in The Protection Of Women From Domestic Violence Act for deciding as to who could have the custody of children caught between warring parents.
Countering her, Rajesh (name changed), maintained that the children were allowed to be with him from Friday to Monday morning every week, only after their kids had told the magistrate they wanted to spend time with him. It is the welfare of the children and not the wishes of the parents that should guide a court while deciding on such sensitive issues, said Rajesh, a resident of Greater Kailash.
After hearing arguments and going through the lower court’s record, ASJ Bansal found force in Rajesh’s argument. The court observed that the magistrate had mentioned in his order that the children were interested in staying with their father from Friday evening to Monday morning and said that while deciding the custody, the “paramount” consideration was the welfare of the kids.
Responding to Sushma’s argument regarding her husband hiring a detective, the court stated that it might be a vital contention for deciding other matters but as far as the question of children’s custody was concerned, their welfare and wish were foremost. “In view of the fact that the magistrate passed the order on the wishes of the children, I found that he had rightly decided the issue,” said ASJ Bansal.

Source : http://www.expressindia.com/latest-news/child-custody-nothing-can-come-between-father-and-kids-says-court/314836/

Dummies guide to Child Visitation

2011-01-20T01:27:00.000-08:00

Good article on "How to file for visitation rights of your own Child?"

http://www.lawyersclubindia.com/forum/Dummies-guide-to-Child-Visitation-a--23093.asp

Child custody laws in India - Categorized by religious beliefs

2011-01-20T01:25:00.000-08:00

Here is a basic summary of the different child custody laws in India, as categorized by religious beliefs, by the Indian penal code:

Hindu law The Hindu Minority and Guardianship Act 1956, along with the Guardians and Wards Act 1890, lays down the rules of guardianship in India. It states that while the natural guardian of a minor is the father, the custodial responsibility of infants should be awarded to the mother.
Despite these notes, such cases are generally inclined in the favor of the mother, since Indian society sees the relationship and bond that mother and child share to be more essential, and thereby nurturing.

Muslim law Under the Muslims laws for divorce in India, the foremost right of custody belongs to the mother, and is known as the “right of hizanat“. In case the mother is disqualified, the father can be given custody as dictated by law.
This is however a time-bound right. After the child has come of age, the father can contest, and gain, legal guardianship.

Parsee Law Laws pertaining to the custody of children is provided in the Parsi Marriage and Divorce Act, 1936 under section 49.

Christian law
There are no specific laws laid down for the Indian Christian community, which is why the 1956 Act is applied in this case.

Custody of Baby can take care by Father also - Supreme Court Judgement

2011-01-20T00:53:00.000-08:00

This is the Supreme Court given judgement that custody of baby can take care by Father also.
In the case of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, a Bench of the Supreme Court comprising Justices C K Thakker and D K Jain held that the child’s welfare is the primary factor in deciding in whose custody the child should be placed.
The question in the case was whether the father or the mother should have the custody of an almost ten year old male child. The child’s parents got married on April 18, 1996. On May 28, 1998, a boy, named Satyajeet was born from the wedlock.
However, within a short time, the relationship between the spouses came under strain. The wife, who was employed as a teacher, felt that her husband had misrepresented his occupational status to her, was addicted to alcohol and smoking, had contacts with anti-social elements and had physically abused her.
After moving out of her marital home leaving her son behind, she filed a suit for divorce against respondent which was decreed ex-parte on September 12, 2002. Since no appeal was preferred by the respondent against the said decree, it attained finality.
She then moved a petition on April 5, 2003 under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.
The application was hotly contested by her ex-husband and the matter ultimately reached the Supreme Court. In its judgment the Court discussed the principles related to deciding which parent should be granted custody of a child, inter alia, saying:

“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:

’809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.’

The stability and security of the child is also an essential ingredient for a full development of child’s talent and personality.”

In this case although the Supreme Court decided that the father should have exclusive custody of the child, it said that visitation rights to the mother deserve to be maintained.
(This is an edited extract of the judgment.)

Mother is not always right person for custody

2011-01-19T01:32:00.001-08:00

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.11.2006
CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN
C.M.A. No.240 of 1998
Sharli Sunitha …Appellant
vs.
D. Balson …Respondent
Civil Miscellaneous Appeal filed under Section 47 of the Guardians and Wards Act, 1890, against the judgment and decree dated 06.10.1997 in O.P. No.40 of 1996 on the file of the District Court, Nilgiris at Uthagamandalam.
For appellant : Mr. R. Subramanian
for Mrs. Hema Sampath
For respondent : Mr. V. Sairam
J U D G M E N T
This Civil Miscellaneous Appeal is directed against the judgment and decree dated 06.10.1997 passed by the District Court, Nilgiris (in short “the Tribunal) in O.P. No.40 of 1996.
2. Sharli Sunitha who is the appellant herein filed a petition under Sections 7 to 10 and 25 of the the Guardians and Wards Act, 1890, before the Tribunal against her husband/respondent herein, seeking guardianship of their child by name Aldheeya.
3. The case of the appellant in brief is as under:
a. The marriage between the appellant and the respondent who belong to Christianity took place on 22.06.1991 and the appellant gave birth to a child named Aldheeya on 05.04.1992. In 1993, the appellant left her matrimonial home due to difference of opinion with the respondent and the respondent filed O.P. No. 13 of 1994 seeking guardianship of their child and on the basis of a memo to the effect that the respondent can meet the child every Sunday between 3 p.m. and 5 p.m. at Holy Velankanni Church, Kothagiri, the petition was dismissed as not pressed.
b. Subsequent to this, the parties were living happily for a few months. But, the respondent had started ill-treating the appellant once again and since the appellant was all alone in their house, she was subject to mental agony and consequent deterioration of health. Hence, on 25.03.1996, after informing the respondent over phone, the appellant had left for her aunt’s house taking the child with her. But, the very next day, the respondent and his elder sister had taken the child from the appellant saying that they would give back the child once she recovered from her illness. On 02.09.1996, when the appellant had come to her matrimonial house with the intention of living together with the respondent, she was ill-treated. With a view to render motherly care and affection and considering the fact that the respondent would be fully engaged in his work all through the day, the appellant filed the Original Petition seeking guardianship of the child.
4. The respondent-husband contested the case by filing his counter and his case is as follows:
The appellant did not leave the matrimonial house on account of misunderstanding with him but she had done so since it was really her habit to leave the matrimonial home quite frequently without even informing him. The appellant had illicit relationship with his sister’s husband Benson and she had left with him for Chennai on 25.03.1996 and stayed in an hotel at Chennai and not in her aunt’s house as claimed by her. The appellant phoned up to the respondent’s sister saying that the respondent can collect the child from one Jothinathan’s house and accordingly, the respondent went to Chennai on 26.03.1993 and took the child. The appellant who has illicit affair with Benson may run away any time and since the respondent owns a workshop, he can work as and when required and as such, he can take care of the child with the help of his sister who has also got two children.
5. On the side of the appellant, she was the only witness and four documents were marked and on the side of the respondent, four witnesses were examined and five documents were marked and the Tribunal, on an analysis of the oral and documentary evidence, dismissed the petition holding that the child should be under the guardianship of the respondent against which the present appeal.
6. Heard both sides.
7. Mr. R. Subramanian, learned counsel for the appellant would contend that the Tribunal went wrong in holding that the appellant went away with Benson. It would be his further contention that the Tribunal has grossly erred in dismissing the petition without even considering the tender age of the child. It was also his strenuous contention that the Tribunal has erred in holding that the appellant was not employed and she does not have the wherewithal to maintain the child.
8. Contending contra, Mr. V. Sairam, learned counsel for the respondent would contend that the appellant is always in the habit of leaving her matrimonial home and is not at all interested in the welfare of her child. He would further contend if the child is in the custody of the respondent, it would be taken care of by the respondent’s sister and it can grow along with the two children of the respondent’s sister and hence, the Tribunal is correct in dismissing the original petition.
9. The point for determination in this appeal is whether the appellant is eligible to take care of the child.
10. While deciding the above point, some useful reference could be made to a decision of a Division Bench of the Kerala High Court in the case of Munnodiyil Peravakutty vs. Kuniyedath Chalil Velayudhan reported in AIR 1992 KERALA 290: para 6)
“Capacity of the custodian to supply the daily necessities such as food, clothing and shelter is the primary consideration. Secondly, the education of the child. The custodian must possess the capacity to create surroundings in which the child will be in touch with education. In the case of a custodian who is himself educated and given to reading and writing, it is easier for the child to keep itself abreast of letters. If the custodian is not educated, he cannot create the requisite background in the home. Thirdly, awareness of the need to keep good health and the capacity to provide the means of keeping good health is another important factor. Fourthly, a knowledgeable parent would greatly contribute to the child’s welfare by taking steps like emphasising health eating habits, providing for vaccination, other measures of health care, timely treatment and company of books. Less educated or ignorant parents may not be able to create these conditions. Fifthly, the economic capacity to educate in a good school, with private coaching, where necessary, meeting expenses of transport, children’s excursions and so on is no less an important factor.
We do not suggest that the question of custody should be decided upon consideration as to which of the two rival claimants is more affluent. While economic condition of a claimant to the custody is an important factor, no less important a factor is: which of the rival claimants to the custody show greater concern for the welfare of the child? The child does not grow merely on food and clothing. The growth of its personality needs love of parents, the denial of which warps the mind and distorts the vision of life. A barren life, devoid of emotional attachment, LOVE OF PARENTS, BROTHERS AND SISTERS AND EVEN OF FRIENDS, RETARDS AND IMPAIRS GROWTH OF A CHILD. tHEREFORE, THE SUM AND SUBSTANCE OF THE MATTER IS: NEITHER ECONOMIC AFFLUENCE NOR A DEEP MENTAL OR EMOTIONAL CONCERN FOR THE WELL-BEING OF THE CHILD, BY ITSELF, IS DETERMINATIVE OF, WHERE THE WELFARE OF THE CHILD LIES. THE ANSWER DEPENDS UPON THE BALANCING OF ALL THESE FACTORS AND DETERMINING WHAT IS BEST FOR THE CHILD’S TOTAL WELL-BEING. THAT IS WHAT WE NOW PROPOSE TO DO.”
11. Admittedly, the appellant had gone to Chennai to her aunt’s house on 25.03.1996 on the ground that she was feeling very aloof and that she was also very weak. In this context, I am of the view it is unnecessary to go into the question as to whether the appellant was having illicit relationship with Benson or not. She has neither stated in her petition nor in her deposition as to what was her exact illness. If she were really unwell, she could have examined the doctor who treated her or at least could have produced the Medical Certificate to prove her illness. But, she has failed to do either of these two. Further, her deposition that she feels aloof sounds to be amusing because a lady with a child of a tender age can in no way feel aloof. Instead, she will have to run short of time in taking care of the child during its pre-school stage and even when the child attains school-going age, she may be fully occupied in preparing the child in sending her to school and assisting her in her homework after return from school in the evenings.
12. Secondly, even according to her, had she really left her matrimonial home as she was feeling very lonely, there is absolutely no need for her to leave her matrimonial home all of a sudden just by making a phone call to her husband. Rather, she could have very well waited till the respondent’s arrival and could have explained her pitiable plight. Even this has not been done. Thirdly, she has deposed that she had taken her child even when her examinations were going on. From this, there is no other option except to draw an inference that she was not bothered of her daughter’s education and she was only interested in going out of home. Thus, these three instances would only go to indicate that she was not interested in the welfare of the child.
13. Next, according to her oral evidence, she was working as a teacher in a school for a salary of Rs.2,000/-. She has also admitted that she is not a graduate. Though she had marked her Salary Certificate, the person who issued the same was not examined. In such a case, her claim that she is earning Rs.2,000/- per month as a teacher is too big a pill to swallow. Next, her contention is that her father is employed at Kothagiri for a salary of Rs.5,000/- per month and her mother is employed as an assistant in a beauty parlour at Coimbatore. But, to prove this, she has not even examined her father nor her mother as witness. Even assuming that the parents are employed, since the appellant’s father is employed at Kothagiri and her mother is employed at Coimbatore, they can, in no way, be helpful in taking care of the child in question. Thus, in short, it appears that the appellant is sound neither monetarywise nor does she have people around her to make her child grow into a well-educated and responsible girl.
14. On the other hand, there is no dispute over the fact the respondent-father owns a workshop. The appellant-mother herself has admitted this in her evidence. Thus, as far as the monetary aspect is concerned, it can be said that the respondent-father will definitely be in a much better position when compared to the appellant-mother in providing basic necessities of life and education to the minor girl. That apart, the respondent-father has got with him, his unemployed mother and his elder sister as well who is residing nearby with her two children. This assures the minor girl of love, affection and guidance. Even assuming that the minor girl is yet to attain the stage of puberty, she has got her paternal grandmother and R.W.2 to relate her in matters which would concern a growing girl during her period of puberty. Thus, the requirements of the minor girl, in all respects, would be best satisfied if she is in the custody of the respondent-father.
15. In view of the above findings and the principles set out in the judgment of the Division Bench of Kerala High Court (supra), it is clear that the appellant-mother is not a proper person for the child to grow with and it is only the respondent-father who will be a better choice of the two. Hence, I hold that the Tribunal has rightly dismissed the original petition filed by the appellant and as such, I find absolutely no merit to consider in the appeal and accordingly, it fails and stands dismissed. No costs.
cad
To
1. The District Court,
Nilgiris, Uthagamandalam
2. The Record Keeper,
V.R. Section
High Court of Madras

Custody to Father - Judgement

2011-01-19T01:29:00.000-08:00

01-KLC-35 (Before K.S.Radhakrishnan & A.Lekshmikutty, JJ)
Monday, the 24th day of September 2001 / 2nd Ashvina, 1923
O.P.NO. 20099 OF 2001 S
Sangeetha : Petitioner
Vs.
The Commissioner of Police, Kochi : Respondents & ors.
This Original petition having been finally heard on 23.8.2001, along with M.F.A.744/98 the Court on 24.9.2001 delivered the following:
M.F.A.NO. 744 OF 1998 C
(Before K.S.Radhakrishnan & G.Sasidharan, JJ)
Monday, the 19th day of March 2001 / 28th Phalguna, 1923
(Against the order in O.P.203/96 on the file of the Family court, Trivandrum)
Suresh Kumar : Appellant
Vs.
Sangeetha : Respondents
This court is witnessing burgeoning of a child custody litigation in the recent past. Mother highlights the paternal deficiencies and the father vice-versa and when they get custody, each tries to denigrate the other parent. The children often get influenced by the indoctrinations of the parent in custody as against the vilified parent. In child custody cases, the result is most often a pyrrhic victory in which both sides lose, even though one may ostensibly the winner. Victory for whom?. It is often at the costs and life of the children. The parents are often unconcerned with the trauma and the psychological impact on the children.(Paragraph No.1)
We may indicate when a petition for divorce on mutual consent is filed needless to say parties will have to ascertain the wishes of the children also and to decide to whom custody of the children be given considering their best interest.(Paragraph No.16)
Referred to : AIR 1948 Madras 294
1960 KLT 812
AIR 1987 SC 1026
2001 (5) SCC 247
In an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of someone else. As held by the apex court the principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. (Paragraph No.20)
It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children.(Paragraph No.21)
Relied on : 1973 (1) SCC 840
2000 (6) SCC 594
2001 AK (SCW) 1033
Courts have reiterated that paramount consideration is the welfare of the children and court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances. We are aware, as far as writ of habeas corpus is concerned, we are not adjudicating the question as to who should be the legal guardian of the children.
In writ of habeas corpus neither the provisions of the Guardian and Wards Act nor the provisions of the Hindu Marriage Act would stand in the way; nor a decree passed under Section 13 B of the Hindu Marriage Act. In writ of habeas corpus the question is whether fourth respondent is illegally detaining the children and as to whether he is detaining the children against their wish. (Paragraph No.21)
We may also hasten to add that there is no evidence in this case to establish that fourth respondent had in any way abducted the children from the maternal home or that he is retaining the children against their wishes or by force. We are of the view that the children are with the father on their own volition and it cannot be said that their continued stay with the fourth respondent is unlawful or illegal. We cannot visualize a situation where father should forcibly send out his children out of his house when the children voluntarily and with open mind and consciously stay with him or forcefully remove the children with police aid. In a child custody litigation especially when parties are at logger-heads there is a tendency on either side to highlight each others’ deficiency and allege that the other side will try to brainwash the children so as to denigrate the other party. The tender aged children would not be able to make a best judgment at times when the children are influenced by the indoctrinations of the parent in custody. Sometimes parents and relations on either side join the respective sides so as to intensify the situation. They often complicate the welfare and best interest of the children and the dispute attains a power struggle between two groups. (Paragraph No.22)
Child custody cases are always a mind boggling issue. Parties on either side wish the children to be in their custody and denigrate the children as against the parent which at times influence the children to speak of alienated patent with profanity.
We have indicated that we are in this case concerned only with the welfare of the children as well as the question whether the children are in the illegal or unlawful custody of the fourth respondent. (Paragraph No.23)
This W.A having been finally heard on 19.3.2001, along with O.P.20099/01 the Court on the same day delivered the following:
JUDGMENT (Full Text)
Radhakrishnan.J.
1. This court is witnessing burgeoning of a child custody litigation in the recent past. Mother highlights the paternal deficiencies and the father vice-versa and when they get custody, each tries to denigrate the other parent. The children often get influenced by the indoctrinations of the parent in custody as against the vilified parent. In child custody cases, the result is most often a pyrrhic victory in which both sides lose, even though one may ostensibly the winner. Victory for whom?. It is often at the costs and life of the children. The parents are often unconcerned with the trauma and the psychological impact on the children.
1A. Petition for Habeas Corpus is also being filed seeking custody of the children. O.P.No. 20099 of 2001 is filed for the issue of a writ of habeas corpus by the mother of the children and for a direction to secure liberty of her children, Ananthu and Abhimanyu from the father and grandfather and restore their custody to her.
2. Habeas Corpus petition was filed placing reliance on the compromise decree passed by this court in M.F.A.No.744 of 1998 on 19.3.2001 on a joint petition filed by the father and mother by which custody of the children was given to the petitioner. C.M.P.No. 6762 of 2001 in M.F.A.No. 744 of 1998 was filed by the fourth respondent in O.P.No. 20099 of 2001 to vary condition No.2 in the petition filed under Section 13B in the interest of justice and in paramount consideration of the welfare of the children and to give legal guardianship and custody of the minor children to the father.
3. Before we deal with the reliefs sought for in the above petitions, we have to examine the factual background in which these petitions have been filed. We will refer to the parties according to their status in the Habeas Corpus petition. Petitioner and fourth respondent got married on 1.9.1985. Two children by name Ananthu and Abhimanyu were born to them. Ananthu is now aged 14 and Abhimanyu 10. Second son Abhimanyu had a conjunctive cataract in his left eye and a surgery was performed when he was six months old at Aravind Eye Hospital, Madurai. Children were all along staying with the parents till 1995. Disputes then cropped up between the petitioner and fourth respondent. Petitioner stayed away from the fourth respondent from January 1995 onwards, but the children continued to be in the custody of the father. Father was looking after the welfare of the children all along. In other words, children were with the father except for a short while.
4. Fourth respondent in the year 1998 filed O.P.No. 224 of 1998 before the Family Court, Thiruvananthapuram praying for divorce on the ground of mental cruelty and harassment. Petitioner entered appearance before the Family court, but no counter-affidavit was filed. Ultimately an ex-parte decree of divorce was passed on 31.1.2000. Fourth respondent then re-married on 16.4.2000. The ex-parte decree was however set aside the instance of the petitioner.
5. Petitioner and fourth respondent had earlier filed a petition under Section 13B of the Hindu Marriage Act before the Family Court, Thiruvananthapuram as O.P.No. 203 of 1996. Petitioner however withdrew her consent to the joint petition dated 22.3.1996 and the same was therefore dismissed on 17.3.1998. Against the order of the Family court, fourth respondent filed M.F.A.No. 744 of 1998 on 19.5.1998 seeking divorce on the ground that the marriage between the parties had irretrievably been broken down. When the appeal came up for hearing, learned counsel for the petitioner and the fourth respondent pointed out that a joint petition was filed by the parties under Section 13B of the Hindu Marriage Act before the Family Court and that there was no justification in withdrawing the consent by the petitioner. It was pointed out that the parties had then agreed for a divorce on certain terms and conditions and they wanted to incorporate the terms and conditions and to pass decree of divorce in the appeal. This court disposed of the appeal on 19.3.2001 incorporating the following terms and conditions agreed upon by the parties.
1. The marriage between the petitioners dated 1.9.1985 be dissolved by a decree of dissolution of marriage on mutual consent.
2. The two male children born of the wedlock, shall be in the legal guardianship of petitioner No.2. Petitioner No.1 shall give custody of the children on or before 15.4.2001.
3. Petitioner No.1 shall have right to visit the children on the 2nd Saturday of every month. He may take the children to his residence at 10.00 a.m. on such second Saturday at his expense, and re-entrust them to petitioner No.2 before 6.00 p.m. the next day.
4. Petitioner No.1 shall pay an amount of Rs.2,000/- per month to petitioner No.2 as maintenance till she get remarried.
5. Petitioner No. 1 shall pay an amount of Rs.3,000/- per month (Rs.1,500/- for each son) to petitioner No.2 for maintenance of the two children.
6. As pointed out above, as per the terms and conditions custody of the children was to be given to the petitioner on or before 15.4.2001. On 9.4.2001 fourth respondent filed petition C.M.P.No. 3152 of 2001 stating that after passing the decree children were appraised of the court order regarding custody. However, they wanted to be in the custody of the father and it would be in the welfare of the children that the present arrangement should continue. It is pointed out it is out of love and affection and due to their request that fourth respondent was moving the petition. Fourth respondent wanted to ascertain the wish of the children before they were handed over to the petitioner. On the request made by the fourth respondent father, we had discussion with the children and we found no reason to modify condition No.2 agreed to by the parties. Consequently the petition was dismissed on 10.4.2001. Fourth respondent then filed C.M.P.No. 3690 of 2001 on 17.4.2001. It was averred in the said petition that the petitioner is suffering from histrionic personality disorder and therefore would not be in a position to look after the welfare of the children. He reiterated that children were adamant that they should continue to be with their father. He therefore made a request to delete condition No.2. It was also pointed out that he had agreed to condition No.2, due to suppression of material facts. He also wanted to enlarge the time fixed in condition No.2 for handing over the custody of the children to the petitioner. Meanwhile petitioner also filed C.M.P.No. 3673 of 2001 on 18.4.2001 for a direction to the fourth respondent to produce the children before court for handing over them to her in the presence of court.
7. This court disposed of the petition holding that the parties are bound by the decree and that if parties are not complying with the court order, court would be compelled to take contempt of court proceedings. Petitioner also filed C.M.P.No. 4156 of 2001 for a direction to the fourth respondent to hand over custody of the children to her forthwith. On 7.6.2001 parties were present and the children were handed over to the petitioner and the same was recorded by the court on the same date. C.M.P.No. 3690 of 2001 filed by the fourth respondent seeking enlargement of time limit fixed was also dismissed on 7.6.2001. Fourth respondent later filed C.M.P.No. 5307 of 2001 on 22.6.2001 seeking a direction to alter the judgment and decree passed in the appeal with regard to the custody of the children after ascertaining their wishes. It was pointed out in the affidavit filed in support of the petition that the children were not prepared to go with the petitioner on 10.4.2001 and they were called into the chambers of one of us (Radhakrishnan, J.). In the affidavit it is stated as follows:
A modification to condition No.2 of the above order was sought by the petitioner on the ground of reluctance of the children to be with the respondent, which was dismissed by this Hon. Court, after examining the children, on 10.4.2001.
On 10.4.2001, while waiting for being called into the chamber of Hon. Judges, the petitioner herein had seen the respondent hugging and persuading the children not to speak against her. While so the children were called into the chamber, followed by the petitioner and the respondent after a short time, wherein, the respondent resorted to profuse weeping and emotional outbreaks. Emerging out of the chamber, the respondent herein came over to the petitioner and was laughing deliriously.Later it was understood from the children that the respondent herein had effectively threatened to commit suicide by cutting her own wrists in the court premises itself, in the event of the children expressing their reluctance to go along with her. The children further elaborated their traumatic experiences and violent, physical ill treatment meted out to them by the respondent herein during such occasions of their short stay.
Enquiry into the antecedents of the respondent based on the facts revealed by the children and of the petitioner’s own impressions revealed that the respondent herein has a psychological illness called Histrionic Personality Disorder bordering on psychosis (Extreme Extroversion), an irreversible condition rendering her incapable of discharging parental responsibilities.
Along with the petition he has also produced extract of the transcription of the recorded conversation on 12.4.2001 with Dr.Krishna Prasad Sridhar and Dr.Janaki. The petition came up for hearing on 22.6.2001 and the same was dismissed on the same day.
8. After getting custody of the children on 7.6.2001 by the petitioner, children were admitted to Assissi Vidyanikethan Public School, Kakkanad on 25.6.2001. On 6.7.2001 petitioner herein filed the present Habeas Corpus petition stating that the children were illegally taken by the fourth respondent and to ensure their presence before court and handing over custody of the children to her. It is stated in the petition that even though the children went to school on 2.7.2001 they did not return from the school by 5 p.m. In the Habeas Corpus petition fourth respondent and his father were also heard. It was stated that respondents 4 and 5 might have tutored the children. When the petition came up for admission on 6.7.2001, this court issued notice by special messenger and on the allegation made by the petitioner, direction was issued to the fourth respondent to produce the children on 9.7.2001 at 1.45 p.m. Since the children were not produced on 9.7.2001 the case was adjourned to 12.7.2001. This court was informed by the learned Government Pleader that Crime No. 501 of 2001 was registered by the Central Police Station on 3.7.2001 on the basis of the complaint filed by the petitioner alleging that her two children are missing from the school. Learned Government Pleader submitted that the enquiry revealed that the children were in the house of the fourth respondent on 4.7.2001 and they were reluctant to go with the mother. Since the order of the court was not carried out the S.I of Police was placed under suspension and the matter was entrusted to Circle Inspector of Police, Harbour Police Station who took up the investigation on 6.7.2001. In the meantime police also received telegram messages from the fourth respondent stating that he is proposing to file petitions before the Supreme court against the order of this court dated 22.6.2001 and also against the order of the court directing to give custody of the children to the mother. Since children were not produced as directed by this court, this court issued warrant of arrest on 20.7.2001. Fourth respondent, as we have already indicated, filed S.L.P.(Civil) No. 11586 of 2001 against the order of this court in C.M.P.No. 5307 of 2001 in M.F.A. No. 744 of 1998 and also Special Leave to Appeal No. 11587 of 2001 against the order dated 6.7.2001 in O.P.No. 20099 of 2001 directing production of the children on 9.7.2001 which were dismissed by the Supreme Court on 18.7.2001.
9. The fourth respondent then appeared before this court with the children on 20.7.2001 and this court released fourth respondent on executing personal bond undertaking that he would appear and produce the children as and when required. We had a discussion at out chambers with the children on 20.7.2001 and the children expressed their desire to be with their father and stated they were not illegally detained by the father. Since we thought a detailed examination of the issue was necessary, as an interim arrangement we allowed the children to be with the father and also gave direction to the father to make arrangements for continuance of their studies since the children were not going to the school. Fourth respondent submitted that he was not illegally detaining the children, but the children on their own volition left the petitioner to Pandalam and they telephoned the fourth respondent from the residence of his friend at Pandalam. They expressed their desire to be with their father. In such circumstances, children happened to be with him at Trivandrum and wanted to file detailed counter affidavit in the petition. Consequently the matter was adjourned.
10. A detailed counter affidavit has been filed on behalf of the fourth respondent, wherein he has stated as follows:
The O.P.No. 19404/2001 (Habeas Corpus) was taken up at 1.45 PM on 2.7.2001 and the Honourable Bench indicated that orders would be passed on the OP. At around past 7.00 PM this respondent and his advocate were at Room No.2, YMCA Guest House when, Sri.Nirmalan, CI of Police, Central Police Station, Ernakulam came over to the room and informed that the children Ananthu and Abhimanyu were missing. This respondent enquired whether the children had gone to school that day and whether the school authorities had been contacted. This respondent was told that this had not been done yet. This respondent informed the Circle Inspector about the e-mail messages that had been received from the children, about the Habeas Corpus Petition pending before the Hon. High Court and also the possibility of the children having fled from their mother. This respondent also told the C.I that the children could be on their way to his residence at Trivandrum, since the elder boy Ananthu had on his own fled from his mother on an earlier occasion and accordingly this respondent left to Trivandrum.
When this respondent arrived at Trivandrum, he found that his children had not reached his residence. In the morning, on 3.7.2001, the respondent received information from his friend Radhakrishnan, Pandalam that the children had reached Radhakrishnan’s residence at Pandalam at around 7.30 PM the previous night. The respondent immediately left for Pandalam by car KL 01-J-5814. This respondent arrived at Shri.Radhkrishnan’s residence past noon, met the children, and took them to Trivandrum. The respondent produced the children before the Chief Judicial Magistrate, Trivandrum at his residence around 6.00 PM on 3.7.2001. In the petition/request presented to the Chief Judicial Magistrate, Trivandrum, while producing the children, this respondent informed that the children had, on their own escaped from their mother’s custody to escape from her physical and mental ill-treatment. The respondent pleaded that the children’s wishes and the background to their escape may kindly be ascertained and that their interim-custody may be entrusted to the respondent.
Fourth respondent has filed O.P.No. 19404 of 2001 for a writ of habeas corpus as against the petitioner herein for production of the minor children based on three e-mail messages received by him from the children. In those messages children had indicated that they did not want to stay with their mother. The petition came up for hearing on 2.7.2001 and the same was dismissed on 4.7.2001.
11. Fourth respondent took the children with him from the residence of Radhakrishnan where they spent the night. Later he sent a communication to the Commissioner of Police, Cochin City informing that the children had on their own traveled from Ernakulam to Pandalam to escape from the continuing physical torture and abuse of the mother and that the children are with him at his residence. On 4.7.2001 Sub Inspector of Police accompanied by a constable came over to the residence of fourth respondent and recorded statements from the two children wherein the children had stated about the physical torture meted out to them during their stay with the petitioner and also expressed their wish to be with the father. Children had also stated that they had on their own left the school after classes on 2nd July and reached the residence of Radhakrishnan at Pandalam day before. Children described the circumstances which forced them to flee from mother’s custody. Children expressed their reluctance to go with the police and with the mother. Children expressed their reluctance to be produced before any court in Ernakulam since they believed that they would be forcibly handed over to the mother. Under such circumstances, fourth respondent contacted his advocate at New Delhi who advised him to take the children to Delhi so as to move the Hon’ble Supreme Court.
12. The fourth respondent in the counter affidavit stated that he had not snatched away the children from the custody of the petitioner nor had he colluded or sought the help of the fifth respondent for the custody of the children. According to him, children on their own volition escaped from the maternal home and had come to the care and custody of the father. He reiterated that he has no objection in children being handed over to the mother if the children so wish. It was pointed out that two minor children have been staying with him from their infancy except from 7.6.2001 to 2.7.2001 when physical custody was given to the mother on the basis of the joint decree. Even after the mother left the fourth respondent in 1995, he was taking care of the welfare of the children. He was looking after their education all these years. The younger child Abhimanyu aged 10 years had conjunctive cataract in his left eye and had undergone a surgery when he was six months old at Aravind Eye Hospital, Madurai and he is under the legal supervision of Dr. Kannan at Trivandrum. He further stated that he had taken Abhimanyu to Aravind Eye hospital for follow up and for prolonged treatment for Ambliopia a condition caused by the removal of the cataract on his left eye. Even after the guardianship of the children was transferred to their mother and when Abhimanyu was with him, he had personally taken this child to Madurai for follow up on his ambliopia treatment. He used to meet all educational expenses and attend every one of the P.T.A meetings. According to him, he has no objection in handing over the custody of the children to the petitioner if they so wish and if it is in the best interest of the children.
13. Reply affidavit has been filed by the petitioner on 8.8.2001 in which she has highlighted the various methods adopted by the fourth respondent to violate the terms of the decree and also the efforts made by him to take custody of the children violating condition No.2 of the compromise entered into between the parties. According to her, after giving custody of the children to her, she has been looking after the children to the best of her ability. Children were admitted to Assissi Vidyanikethan Public School on 25.6.2001 with much difficulty and from there to St.Thomas Central School, Trivandrum. It is stated that fourth respondent abducted the children from the school on 2.7.2001 and fourth respondent had taken care to keep them away from YMCA Guest House. The allegation that the children had left her on their on volition was denied. It is stated that the various averments made in the counter affidavit are not true version of the children. Children did not have the necessary funds to make the trip from Ernakulam to Tripunithura by auto and from there to Kottayam by bus, from Kottayam to Pandalam by bus and by auto to the house of Radhakrishnan. It is also stated that the view expressed by the children on 20.7.2001 is not the correct expression of their state of minds and were programmed to speak against her. It is also stated that the children were happy with her. Fourth respondent had attempted to instill fear in the mind of the children if they speak against him. Above are the respective cases put up by either side.
14. When the matter came up for hearing we heard counsel for the petitioner Sri.P.B.Krishnan as well as counsel for fourth respondent Sri.R.Anil.
15. We have to give paramount importance to the welfare of the children. Elder child is only aged 14 years and younger 10. This court had occasion to talk to the children on various occasions. Bench consisting of one of us (Radhakrishnan,J.) had occasion to talk to the children before handing over the custody of the children to the mother on 15.4.2001. Since it was a joint decree passed under Section 13B of the Hindu Marriage Act we have to take it that the parents had discussion with the children and ascertained their wish also before filing the joint petition for divorce. The fact that fourth respondent had re-married after obtaining the ex-parte decree on 19.3.2001 and that the petitioner was living separately from 1995 onwards and not re-married, might have prompted the parties to give custody of the children to the petitioner-mother.
16. We may indicate when a petition for divorce on mutual consent is filed needless to say parties will have to ascertain the wishes of the children also and to decide to whom custody of the children be given considering their best interest. Before the custody was given to the petitioner on 15.4.2001 petition was filed by the fourth respondent on 9.4.2001 stating that after passing the decree, children were appraised of the court order regarding custody and they took the stand that they wanted to be in the custody of the father in spite of the decree. Further it was stated that the children expressed their opinion to continue their education in the present school and any change of school would disrupt their studies. The stand of the fourth respondent is that it is out of their love and affection and at their request he had filed petition before this court, C.M.P.No. 3152 of 2001 for modification of condition No.2 in the compromise decree. This court then before handing over custody of the children, summoned the parties and this court talked to the children in the chambers of one of us (Radhakrishnan, J.) on 10.4.2001. Children did not oppose condition No.2 of the compromise decree. In the affidavit filed along with petition No. 5307 of 2001 on 22.6.2001 and C.M.P.No. 3690 of 2001, fourth respondent has explained the circumstances under which children could not explain their genuine desire to court. It is stated that on 10.4.2001 while they were waiting at the court premises, fourth respondent had seen the petitioner hugging and persuading the children not to speak against her. The version of the fourth respondent was that children had told him that the petitioner threatened to commit suicide by cutting her own wrists if they do not go with her. It is under the above-mentioned circumstances the children could not express the genuine desire to the court. The fourth respondent stated that children had also elaborated their traumatic experiences and violent, physical ill-treatment meted out to them by the petitioner when they were with her.
17. We may indicate on 20.7.2001 children appeared before us and we had a very detailed discussion with them. Children expressed their desire to be with their father and reiterated they are not in illegal confinement. This bench again met the children in chambers on 17.8.2001 and they again reiterated their desire to be with the father. According to them, it is in their best interest that they continue with their father. They submitted they left the maternal home on their own volition and not due to any pressure or influence of fourth respondent. On both the occasion when children met us on 20.7.2001 as well as on 17.8.2001 we impressed upon the children that it was on the basis of the joint decree that they were put in the custody of the mother. We also reminded since father had agreed to give custody of the children to the mother they are ordered to be with the mother. We also pointed out the necessity of obeying the decree since it was passed on a compromise petition filed by their parents. We could however gather from the attitude of the children that they very much wanted to be with the father and they are not in illegal confinement.
18. We may narrate in brief the manner in which they left the school on 2.7.2001. They went to Tripunithura, from there to Kottayam and then to Pandalam to the house of one of their father’s friend. It was he who telephoned the father and explained the plight of the children and their desire to be with the father. It was under such circumstances the fourth respondent took the children to Trivandrum. Children submitted that they are staying at Trivandrum on their own volition. It is in their interest that they should be with the father. When we asked the children as to why they had not expressed their reluctance to go with the mother when they met us on 10.4.2001 in chambers they reiterated the reasons which we find in the counter affidavit filed by the father in C.M.P.Nos. 3690 and 5307 of 2001. We may indicate the marriage tie between the petitioner and fourth respondent has already been broken down. Fourth respondent has already obtained decree of divorce and re-married. Petitioner is living separately from the children as well as from the fourth respondent from 1995 onwards. Apart from the short period from 7.6.2001 to 2.7.2001 children were in the custody of the fourth respondent all along. That might have, as we have indicated, developed a psychological bond with the father which may have prompted them to go back to the father.
19. Counsel appearing for the petitioner placing reliance on the decision of a Full Bench of this court in Marggarate Maria v. Dr.Chacko (1969 KLT 174) as well as the Bench decision of this court in F.Youseff V. M.Laila (1993 (1) KLJ 263) submitted that since the petitioner is in legal custody of the children on the basis of the terms of the compromise decree passed by this court in M.F.A.No. 744 of 1998, fourth respondent has no legal right to retain the children with him. Counsel submitted that wishes of the children have also been ascertained by this court on 10.7.2001 and that father and mother had already felt that it is in the best interest of the children that they be with the father. Consequently custody of the children with the fourth respondent is illegal and therefore the court should issue a writ of habeas corpus to hand over the custody of the children to the petitioner. It is also his case that the children were taken from the custody of the mother without her consent since she is in legal custody of the children on the basis of the court decree. Petitioner submitted that it is the duty of the court to ensure that the wrong doer does not gain advantage by a wrong doing. Counsel submitted that condition No.2 that is with regard to the custody of the children is part and parcel of the terms and conditions upon which divorce was granted by this court and consequently any violation of such condition by the fourth respondent would be illegal. Counsel also placed reliance on the decision of the Madras High Court in S.Rama Iyer V. K.V.Nataraja Iyer (AIR 1948 Madras 294), decision of a learned single judge of this court in Abubaker V. Sauda Beevi (1960 KLT 812) and the decision of the apex court in Capt. Dushyant Somal V. Smt.Sushama Somal (AIR 1981 S.C. 1026) and submitted that it is the best interest of the children that they be with the mother since their wish was already ascertained by the parents before they filed Section 13B petition as well as by this court before custody was given as per the court decree. It is his contention that there is no necessity further to ascertain wish of the children since there is likelihood of programming the children. Counsel appearing for fourth respondent Sri.R.Anil reiterated that fourth respondent has not retained the children unlawfully and that they are staying with the fourth respondent on their own volition. He reiterated that the fourth respondent has no objection in giving custody of the children to the mother if the children are agreeable to such a course.
20. We may point out that various decisions cited herein before as well as the decision of the apex court in Syed Saleemuddin V. Dr.Rukhsana and others (2001 (5) SCC 247) have held that in an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that the present custody should be changed and the children should be left in the care and custody of someone else. As held by the apex court the principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court. We are aware that the petitioner is armed with a court decree and that as per the court decree mother is the legal guardian. We are also aware of the various steps taken by the fourth respondent by filing petitions after petitions to modify the condition No.2 for ascertaining the wish of the children and this court dismissed all those petitions. We are also aware that against the decision in CMP.No. 6507 of 2001 as well as the order passed on 6.7.2001 and 20.7.2001 Special Leave Petitions have been filed before the Supreme Court and those petitions were dismissed. All the same in a writ of habeas corpus we have to consider whether the children are in the illegal and unlawful custody of fourth respondent and that he is retaining the children against the wishes of the children and whether welfare of the children requires that the present custody be changed.
21. It is well settled proposition of law that custody of children by their very nature is not final but are interlocutory in nature subject to modification upon change of circumstances requiring change of custody and such change of custody must be proved to be in the best interest of the children. Reliance may be placed on the decisions, Rosy Jacob V. Jacob A.Chakramakkal (1973 (1) SCC 840), Jai Prakash Khadria V. Shyam Sunder Agarwalla and another (2000 (6) SCC 598) and R.V.Srinath Prasad V. Nandamuri Jayakrishna and others (2001 AIR (SCW) 1033). Some of the cases are coming under the Guardian and Wards Act. Courts have reiterated that paramount consideration is the welfare of the children and court has got the power to change their custody in the best interest of the children and taking into consideration of various attendant circumstances. We are aware, as far as writ of habeas corpus is concerned, we are not adjudicating the question as to who should be the legal guardian of the children. Between the parties thee is a valid binding judgment in M.F.A.No. 744 of 1998 and by which legal custody was given to petitioner on the basis of the compromise decree. Therefore as per law the petitioner is the legal guardian of the children. In writ of habeas corpus neither the provisions of the Guardian and Wards Act nor the provisions of the Hindu Marriage Act would stand in the way; nor a decree passed under Section 13 B of the Hindu Marriage Act. In writ of habeas corpus the question is whether fourth respondent is illegally detaining the children and as to whether he is detaining the children against their wish. We have already indicated children have narrated before us that they were with the father from the infancy and that he used to look after their welfare and education. Barring a few days from 7.6.2001 to 2.7.2001 all along they were with their father. Probably a psychological bond with the father might have prompted them to escape from the school on 2.7.2001. We notice from the affidavit filed by the fourth respondent as well as the story unfold by the children to us that they left the maternal home on their own accord and they reached Pandalam on the night of 2.7.2001. It is the fourth respondent’s friend Radhakrishnan who telephoned fourth respondent and it is at his instance father came to Pandalam and took the children to the house at Trivandrum. Since the children are with the fourth respondent on their own volition and that the children expressed their desire to be with the father and that it is their wish that their interest would be better safeguarded if they are with the father, we are of the view that the children are not in the illegal custody of the fourth respondent.
22. We may also hasten to add that there is no evidence in this case to establish that fourth respondent had in any way abducted the children from the maternal home or that he is retaining the children against their wishes or by force. We are of the view that the children are with the father on their own volition and it cannot be said that their continued stay with the fourth respondent is unlawful or illegal. We cannot visualize a situation where father should forcibly send out his children out of his house when the children voluntarily and with open mind and consciously stay with him or forcefully remove the children with police aid. In a child custody litigation especially when parties are at logger-heads there is a tendency on either side to highlight each others’ deficiency and allege that the other side will try to brainwash the children so as to denigrate the other party. The tender aged children would not be able to make a best judgment at times when the children are influenced by the indoctrinations of the parent in custody. Sometimes parents and relations on either side join the respective sides so as to intensify the situation. They often complicate the welfare and best interest of the children and the dispute attains a power struggle between two groups.
23. Child custody cases are always a mind boggling issue. Parties on either side wish the children to be in their custody and denigrate the children as against the parent which at times influence the children to speak of alienated patent with profanity. In this case each side has tried to character assassinate each other and fourth respondent has even stated that the petitioner is suffering from Histrionic Personality disorder. We are not in this case called upon to decide as to who is at fault and also whether both of them are suffering from any psychological disorders. We have indicated that we are in this case concerned only with the welfare of the children as well as the question whether the children are in the illegal or unlawful custody of the fourth respondent. By talking to the children on two occasions on 20.7.2001 as well as on 17.8.2001 we notice that the children have developed a psychological bond with the father. As far as petitioner is concerned she is living separately from 1995 onwards, but the children continued to be in the custody of fourth respondent. Petitioner was in exclusive custody of the children only for a short period from 7.6.2001 to 2.7.2001. We may indicate after talking to children on more than one occasion at length we feel that there is a strong and healthy psychological bond between the children and the father which led them to leave the maternal home and to go back to the paternal home in spite of the decree. We are of the view this is by their own volition and not due to any compulsion by the fourth respondent. At the moment for disposal of this habeas corpus petition, as held by the apex court, the paramount consideration should be the welfare of the children. In other words, we have to apply best interest of the child doctrine to resolve this issue. We therefore lean in favour of the wishes of the children who are aged 14 and 10 years and hold that they are not in illegal or unlawful custody of the fourth respondent-father but they are living with the fourth respondent on their own volition. Petitioner could not establish any exclusionary tactics adopted by the fourth respondent so as to deprive the mother of the legal custody. We may reiterate that counsel for the fourth respondent has submitted that fourth respondent has no objection whatsoever in the children going back and stay with the mother as and when they desire and he also submitted that the fourth respondent respects the joint decree passed in M.F.A.No. 744 of 1998.
24. In view of the aforementioned circumstances, we are of the view writ of habeas corpus prayed for cannot be granted. We reject the same. In view of the above findings, we find no reason to pass any orders in C.M.P.No. 6762 of 2001 in M.F.A.No. 744 of 1998. All the petitions will stand dismissed.

Child Custody - Types of Custody

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Child Custody:

In divorce proceedings, the most complex and emotionally drenching issue is that of child custody. Children, young and at times infant have to bear the pain for no fault of theirs. Due to the extreme emotional attachment, both parents want to keep the custody of the children. In Indian set-up, such question is decided by the court of Guardian and Wards. Welfare of the children is the paramount consideration before the Court while deciding the question as to who is entitled to have the custody of children. Custody of children can be divided in to three parts:

1) Permanent Custody: After determining all issues, Court grants permanent custody of children to one of the party.

2) Interim Custody : During the pendancy of the case and otherwise, court can grant interim custody to one of the spouse. It is also possible that Court grants interim custody of children to the other parent at the times of vacations, holidays etc.

3) Visitation Rights: Every parent has inalienable right to meet and see his/her children. Even after winning the case of custody of children by one parent, other parent can not be denied the right to meet and see his/her children. In disposing of such cases, Court awards reasonable visitation right to the other parents and fix up the time and days for the meeting with his/ her children so that the emotional ties are not broken between the child and the other parent.

Father is Natural guardians of a Hindu minor

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PETITIONER:MS. GITHA HARIHARAN & ANR.
Vs.
RESPONDENT:RESERVE BANK OF INDIA & ANR.
DATE OF JUDGMENT: 17/02/1999
BENCH:Umesh C. Banerjee
JUDGMENT:BANERJEE,J.
Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low ebb, but with the passage of time and change of social structure the same is however no longer dormant but presently quite loud. This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of
any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same.
2. We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section
6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956.
3. In order, however, to appreciate the contentions raised, it would be convenient to advert to the factual aspect of the matters at this juncture. The facts in WP c No.489 of 1995 can be stated as below:-
4. The petitioner and Dr. Mohan Ram were married at Bangalore in 1982 and in July 1984, a son named Rishab Bailey was born to them. In December, 1984 the petitioner applied to the Reserve Bank of India for 9% Relief Bond to be held in the name of their minor son Rishab alongwith an intimation that the petitioner No.1 being the mother, would act as the natural guardian for the purposes of investments.
The application however was sent back to the petitioner by the RBI Authority advising her to produce the application signed by the father and in the alternative the Bank informed that a certificate of guardianship from a Competent Authority in her favour, ought to be forwarded to the Bank forthwith so as to enable the Bank to issue Bonds as requested and it is this communication from the RBI authorities, which is stated to be arbitrary and opposed to the basic concept of justice in this petition under Article 32 of the Constitution challenging the validity of section 6 of the Act as indicated above.
5. The factual backdrop in WP c No.1016 of 1991 centres round a prayer for custody of the minor son born through the lawful wedlock between the petitioner and the first respondent. Be it noted that a divorce proceeding is pending in the District Court of Delhi and the first respondent has prayed for custody of their
minor son in the same proceeding. The petitioner in turn, however, also has filed an application for maintenance for herself and the minor son. On further factual score it appears that the first respondent has been repeatedly writing to the petitioner, asserting that he was the only natural guardian of the minor and no decision should be taken without his permission. Incidentally, the minor has been staying with the mother and it has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for declaration of the provisions of Section 6(a) of the Act
read with Section 19(b) of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the
6.Since,challenge to the constitutionality of Section 6 of the Act is involved in both the matters, the petitions were heard together.
7. Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children.
8. It has been contended that on a true and proper interpretation of section 4 and the various provisions
thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately however, the language in section 6 of the Act runs counter to such an equality of rights of the parents to act as guardian to the minor child. 9. For convenience sake however section 6 of the Act of 1956 is set out herein below: “6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation-In this section, the expressions `father’ and `mother’ do not include a step-father and a step-mother.”
10. Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute
book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today. But the law makers however thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social
and economic changes in the society. It is on this perspective however certain aspects of the law as it stood
prior to the codification ought to be noted. 11. As regards the concept of guardianship both the
parents under the Hindu law were treated as natural guardians, of the persons and the separate property of their minor children, male or female except however that the husband is the natural guardian of his wife howsoever young she might be and the adopted father being the natural guardian of the adopted son. The law however provided that upon the death of the father and in the event of there being no testamentary guardian appointed by the father, the mother succeeds to the natural guardianship of the person and separate property of their minor children. Conceptually, this guardianship however is in the nature of a sacred trust
and the guardian cannot therefore, during his lifetime substitute another person to be the guardian in his place
though however entrustment of the custody of the child for education or purposes allying may be effected temporarily with a power to revoke at the option of the guardian.
12. The codification of this law pertaining to guardianship however brought about certain changes in regard
thereto, of which we will presently refer, but it is interesting to note that prior to the enactment, the law
recognised both de facto and de jure guardian of a minor: A guardian-de- facto implying thereby one who has taken upon himself the guardianship of a minor-whereas the guardian de-jure is a legal guardian who has a legal right to guardianship of a person or the property or both as the case may be. This concept of legal guardian includes a natural guardian: a testamentary guardian or a guardian of a Hindu minor appointed or declared by Court of law under the general law of British India.
13. Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian
Majority Act of 1875. Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.
14. Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately the Indian Courts following the rule of equality as administered in England have refused
to give effect to inflexible application of paternal right of minor children. In equity, a discretionary power has
been exercised to control the father’s or guardian’s legal rights of custody, where exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child. In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: “The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word `welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded.” Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated: “The Court has to
consider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother’s lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich,
that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings
and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these.” The English law therefore has been consistent with the concept of welfare theory of the child. The Indian law also does not make any departure, therefrom.. In this
context, reference may be made to the decision of this Court in the case of J.V. Gajre vs. Pathankhan and Ors. (1970 (2) SCC 717) in which this Court in paragraph 11 of the report observed:
“We have already referred to the fact that the father and mother of the appellant had fallen out and that the
mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor
appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956), the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minor’s person
as well as the minor’s property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.”
15. Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the
child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and gro wth of the child.
16. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian? Ms. Indira Jaisingh answers it with an emphatic `no’ and contended that the statute in question covering this aspect of the Personal law has used the expression `after’ in Section 6 (a) but the same cannot run counter to the constitutional safeguards of gender justice and as such cannot but be termed to be void and ultravires the
Constitution.
17. Be it noted here that the expressions `guardian’ and `natural guardian’ have been given statutory meanings as appears from Section 4(b) wherein guardian is said to mean a person having the care of the person of a minor or his property and includes: (i) natural guardian;
(ii) a guardian appointed by the will of the minor’s father or mother; (iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any enactment relating to any court of wards;
18. It is pertinent to note that sub-section (c) of section 4 provides that a natural guardian means a guardian
mentioned in section 6. This definition section, however obviously in accordance with the rule of interpretation of statute, ought to be read subject to Section 6 being one of the basic provisions of the Act and it is this Section 6 which records that natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian
stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor - It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision. It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the life time of the father which also cannot but be stated to be a prohibited marker under Article 15 of
the Constitution.
19. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after’ appearing in section 6A shall have to be interpreted. It is now a settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent-in the event of which a wider debate may be had hav ing due reference to the contextual facts..
20.The contextual facts in the decision noticed above, depict that since the father was not taking any interest in the minor and it was as good as if he was non-existing so far as the minor was concerned, the High Court allowed the mother to be the guardian but without expression of any opinion as regards the true and correct interpretation of the word `after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956 – it was decided upon the facts of the matter in issue.
The High Court in fact recognised the mother to act as the natural guardian and the findings stand accepted and approved by this Court. Strictly speaking, therefore, this decision does not lend any assistance in the facts of the matter under consideration excepting however that welfare concept had its due recognition.
21. There is yet another decision of this Court in the case of Panni Lal vs Rajinder Singh and Another (1993 (4) SCC 38) wherein the earlier decision in Gajre’s case was noted but in our view Panni Lal’s case does not lend any assistance in the matter in issue and since the decision pertain to protection of the properties of a minor.
22. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in section 6 in a slightly more greater detail. The word `guardian’ and the meaning attributed to it by the legislature under section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the word as “a person having the care of the person of a minor or his property or of both his person and property….” It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word `guardian’ both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor
has to be in the custody of the person who can sub-serve his welfare in the best possible way – the interest of the child being paramount consideration.
23. The expression `natural guardian’ has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in section 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that
in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word `guardian’ in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective mother’s right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression `after’ therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.
24. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word `after’ is to be read to mean a disqualification of a mother to act as a guardian during the
lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional
mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word `after’ shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to
the words used.
25. In our opinion the word `after’ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the
legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child.
26.In that view of the matter question of ascribing the literal meaning to the word `after’ in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided.
27. In view of the above, the Writ Petition c No.489 of 1995 stands disposed of with a direction that Reserve Bank authorities are directed to formulate appropriate methodology in the light of the observations, as above, so as to meet the situation as called for in the contextual facts.
28.Writ Petition c No.1016 of 1991 also stands disposed of in the light of the observations as recorded above and the matter pending before the District court, Delhi, as regards custody and guardianship of the minor child, shall be decided in accordance therewith.
29. In the facts of the matters under consideration there shall however be no order as to costs.

How Child Visitation should be determined?

2011-01-18T03:03:00.001-08:00

Pramjit Singh Lamba Vs. Smit Prabjot Kaur [2004] INHCD 76 (12 April 2004)
IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT:
CRP No.276/2003

Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.

Hindu Marriage Act 1955 -Custody of the Minor Child

Paramjit Singh Lamba ...Petitioner

through Mr. J.P. Singh, Advocate

Versus

Smt. Prabjot Kaur ...Respondent

through Mr. K. Sultan Singh

with Mr. Manish Kumar, Advocates

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VIKRAMAJIT SEN, J.

1. This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights' of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child's time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.

2. The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.

3. In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child's life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.

4. So far as the interests of the child are concerned it is imperative that a meaningful exposure to both parents should be ordained by the Court. One hour every month is clearly counter-productive for the achievement of this objective, as this case palpably manifests. The Court should endeavour to make a weekly meeting possible and only insist that this should be in the Court precincts where no other alternative is possible. It is only in rare cases that such a location should be prescribed. The duration of the meeting should be fixed so as to enable a healthy interaction between the parent and child, and should not be reduced to a mere legal formality. There is also no reason why a shorter visitation, say for one hour, should also not be ordered on a week day so that there is constant contact between the child and the parent. This may be onerous or awkward for the parent who has custody, but in a dismembered family, it cannot be avoided. The parents will eventually evolve a system and develop a pragmatic and healthy attitude where their lives continue in the smoothest manner possible even in such adverse and unfortunate circumstances.

5. In the impugned Order the Additional District Judge has understandably noted and has been adversely influenced by the fact that the application for a change in the interim arrangement and for custody of the child had been presented by the Father only on the filing of the Petition under Section 13(1) (ia) of the Hindu Marriage Act. This is also a reality, but the bluff of the parent filing such an application can be countered by allowing access/visitation rights to the child which the uninterested parent would eventually not fully avail of. In such a case the parent would run the danger not only of alienating the child forever, but also creating an occasion for modification in the duration of child access.

6. I would allow the present Revision by increasing the access of the Father to one hour every week, in the first instance. Since it is evident that the daughter is presently inimical towards meeting her Father, it is expected of the Respondent that she should create a congenial atmosphere which would obviate the meeting/visitation to be held in the Court of the Matrimonial/ Guardian Judge. If avoidable bickering does not end, the parents would end up wasting the better part of their lives in Court, and this should soon bring them to their senses. Their folly, however, is no justification for not endeavouring to achieve the best for the unfortunate child, who has no role or say in the spousal spat.

7. The place of the weekly meeting is left to the Matrimonial/ Guardian Judge to determine. As has been observed, it is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents. My faith that Counsel for the parties shall both advise and assist in bringing about some sanity in their respective clients will, I turst, not be in vain.

8. The Petition is disposed of with these observations. Parties to appear before the Additional District Judge on 21st April, 2004.

April 12, 2004
(VIKRAMAJIT SEN)
JUDGE

Rules for Child Custody - SC

2011-01-18T03:02:00.000-08:00

CASE NO.:Appeal (civil) 1685-1686 of 2001
PETITIONER:R.V.SRINATH PRASAD
Vs.
RESPONDENT:NANDAMURI JAYAKRISHNA & ORS.
DATE OF JUDGMENT: 02/03/2001
BENCH:D.P. Mohapatra , Shivaraj V. Patil
JUDGMENT:D.P.MOHAPATRA,J.
Leave granted.
The controversy raised in this case relates to the interim custody of the two minor sons of the appellant. He
has filed this appeal assailing the judgment/order dated 16th November, 2000 of the High Court of Madras in which a Division Bench of the Court ordered that interim custody of the children should be with the maternal grand-parents, the respondents herein, till the matter is finally decided by the competent court. The Division Bench also directed the Family Court to number the petition filed by the respondents for custody of the children and dispose of the same as early as possible within three months of the date of receipt of
the order. It is stated in the judgment/order that interim custody of the children is to be given to their maternal
grand-parents for their better welfare and also to perform the rituals/karma of their deceased mother. The Court permitted the appellant and paternal grand- parents of the children to visit them, if they so desire, twice a month with prior intimation till the matter is finally decided.
The High Court also granted liberty to the parties to move the Court under the Guardians and Wards Act and also to move for an interim custody, after withdrawing the petition filed before the Family Court. It was made clear that any observation made in the judgment/order will not prejudice either side and the arrangement made in the order is only an interim arrangement and will not create any right or
prejudice to the case of either side. The facts of the case leading to the present proceeding, shorn of unnecessary details, may be stated thus: R.V.Srinath Prasad the appellant was married to Kumudini, daughter of respondent no.1. Two sons, Jay Viraj, now aged about 5 years and Neal Krishna aged about 3 years were born of the said wedlock.
Both the parties belong to well to do families. While respondent no.1 is the son of late N.T.Rama Rao, the
appellant is a businessman engaged in commercial activities in U.S.A. After their marriage in 1993 the couple lived in USA till December, 1999 and during the said period the two children were born, one in 1995 and the other in 1997. The wife returned to India with the two children in December, 1999 and lived with her parents-in-law at Chennai between January to July, 2000. On 24th October, 2000 the wife consumed some poisonous material in her friend’s house and fell ill. After remaining in coma from 24th October, 2000
she expired on 29th October, 2000. Shortly before the tragic incident happened the wife with her two children had shifted to a flat purchased by her father – at Chennai.
Before going to her friend’s house on 24th October, 2000 she had left the children with her parents-in-law. The cremation of her body was done in Chennai. The respondent no.1 filed a petition in the Family Court at Chennai seeking custody of the minor children on 7th November, 2000. On the same day he filed a writ petition in the High Court seeking, inter alia, a writ of Mandamus to the Family Court, Chennai
to dispose of the petition expeditiously. In the said writ petition, an application for interim order was filed with
the prayer, which reads as follows: “For the reasons stated in the accompanying affidavit, the petitioner herein prays that pending disposal of the above writ, this Honourable Court may be pleased to direct the respondents, to handover the interim custody of the Two grand children Jay Viraj Prasad and Neal Krishna to the petitioner to enable him to take them to Hyderabad for performing the Karma of their
deceased mother and the petitioner’s deceased daughter Kumudini on 8.11.2000 and continue to have the custody of the said two grand children until further orders of this Honourble Court and pass such other further order or orders as this Honourble Court may deem fit and proper, under such
circumstances of this case.”
(Emphasis supplied)
The writ petition and the interim application came up before a single Judge of the High Court on the same day i.e. the 7th November, 2000 on which day the learned single Judge while ordering notice of motion returnable by four weeks passed an ex- parte interim order, the operative portion of which reads as follows:
“Accordingly, there shall be a direction to the Commissioner of Police, Chennai to trace out the children
Jai Viraj and Neal Krishna immediately and handover the said children to the custody of the counsel on record for the petitioner Ms.B.Saraswati. When the children are handed over, they must be accompanied to Hyderabad with Police protection and the children must be allowed to perform obsequies. It is also made clear that the petitioner who is the maternal grand father of the children must be responsible for the safe custody of the children.”
(Emphasis supplied)
The said order was challenged before the Division Bench in Writ Appeal No.1954 of 2000 filed by the appellant herein. In the said appeal an application for interim order being CMP No.17059 of 2000, was also filed. The Division Bench disposed of the writ appeal as well as the application for interim order by the order dated 16th November, 2000 which is under challenge in this appeal.
Shri Shanti Bhushan, learned senior counsel appearing for the appellant strenuously urged that the entire approach of the Division Bench to the matter is grossly erroneous and that has vitiated the order passed by it. The Division Bench, submitted Shri Shanti Bhushan, has ignored the essential material facts; that the appellant, father of the minor children, is their natural guardian; that he has returned to India with a view to carry on business here; that he is staying with his parents at Chennai and that the children were staying with them. According to Shri Shanti Bhushan, no material was produced before the Division Bench and none has been noticed in the judgment/order under challenge which would even prima facie show that the custody
of the minor children should be changed. Shri Shanti Bhushan further submitted that the children are attached to their father and miss him very much. Both the children were attending school at Chennai and their schooling had to be discontinued in view of the order directing interim custody of the children to be given to the maternal grand- parents.
Refuting the observation in the judgment/order under challenge that the appellant stays in USA, Shri Shanti
Bhushan filed an affidavit by the appellant containing a statement that he has decided to settle down in Chennai for the purpose of carrying on business. He has also set up a factory at the Export Processing Zone at Chennai. It is further stated in the affidavit that the appellant stays with his parents – respondent nos.2 and 3 herein; his sister, who is a medical practitioner running a hospital at Coimbatore has two children, a daughter aged 7 years and a son aged 3 years; she visits Chennai at least twice a month. Referring to the affidavit Shri Shanti Bhushan submitted that if custody of the children is left with the appellant there will be no difficulty in giving them proper care and attention. They will have the company of the children of his sister. Shri Shanti Bhushan contended that the procedure followed by the Division Bench in hastily disposing of the writ appeal dealing with the interim custody of the children while leaving the matter to the Family Court for decision on merits is unsustainable and should be set aside.
Shri K.N.Bhat, learned senior counsel appearing for the respondents supported the contentions raised by Shri Shanti Bhushan. Shri Rakesh Dwivedi, learned senior counsel appearing for the contesting respondents urged that there are materials on record to show that in the life-time of the deceased wife, the appellant had ill-treated and ignored her which caused serious mental torture to the lady compelling her to part company with her husband and return to Chennai. Ultimately she committed suicide. Sri Dwivedi relied on the
note left by the deceased in support of his contention. It was the further submission of Sri Dwivedi that the deceased wife suspsected that her husband was having an extra-marital affair with one Tania Kapoor, whose father is a business associate of the appellant. In the circumstances of the case, Sri Dwivedi submitted it is in the best interest of the children to place them in custody of such a person.
Shri Dwivedi also raised the contention that the High Court has independent jurisdiction under the Letters Patent to decide the question of custody of minors and therefore, no exception can be taken to the impugned judgment/order on the ground of lack of jurisdiction.
Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a
matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance.
At the outset, we would like to observe that it will not be fair and proper for us to delve deep into the merit of the case since the petition filed for custody of the minor children is pending before the Family Court at Hyderabad and any finding recorded or observation made by us in this proceeding may prejudice the parties. Therefore, we will try to avoid entering deep into the merits of the case as far as possible. On a perusal of the judgment/order passed by the Division Bench, we are constrained to observe that neither the manner of disposal of the proceeding nor the order directing the change of custody of the children from their father to their maternal grand-parents can be supported. The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.1 was to alter that position before the
application filed by them is considered by the Family Court.
For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately. It is relevant to state here that the respondent no.1 maternal grand-parents wanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the order passed by the learned single Judge and such
necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper.
The High Court appears to have overlooked the settled principle that custody orders by their nature can never be final; however , before a change is made it must be proved to be in the paramount interest of the children. In a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide confortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria vs. Shyam Sunder Agarwalla and another 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication
before the Family Court at Hyderabad. For the reasons set forth in the preceding paragraphs we are not persuaded to sustain the order passed by the High Court changing the custody of the minor children from their father to their maternal grand parents.

The appeals are allowed. The order passed by the Division Bench dated 16.11.2000 in Writ Appeal No.1954/2000 and in C.M.P.No.17059/2000 is set aside. The respondent no.1 shall leave the minor children in the custody of the appellant. He will have the right to visit the children twice a month with prior intimation to the appellant. The appellant shall make necessary arrangements for the purpose. This order is passed without prejudice to the rights and contentions of the parties. There will,however, be no order for costs.

Child Custody to Father – Madras HC Verdict

2011-01-18T02:51:00.001-08:00

Ramakrishna v. Priya Ganesan – HCP.No.108 of 2007 [2007] INTNHC 1149 (27 March 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-03-2007
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. MOHAN RAM
H.C.P.NO.108 OF 2007
Ramakrishna Balasubramanian
Rep. by his duly attested
power agent P.R. Balasubramanian
No.5, 3rd Cross Street,
Jayanagar, Tambaram Santorium,
Chennai 600 047. .. Petitioner Vs.
1. Ms. Priya Ganesan
D/o.Ganesan
79/G, Luz Avenue, Mylapore,
Chennai 600 004.
2. The Commissioner of Police,
Egmore, Chennai 600 008.
3. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus directing the respondents to produce the petitioner’s grand-daughter Miss. Nikhita Ramakrishnan before this Court and set her at liberty by handing over her custody to the petitioner. For Petitioner : Mr.P. Krishnan for Ms.T.S. Selvarani For Respondent-1 : Mrs. Geetha Ramaseshan For Respondents 2 &3 : Mr.M. Babu Muthu Meeran Addl. Public Prosecutor – - –
O R D E R
P.K. MISRA, J
This Habeas Corpus Petition has been filed on behalf of Ramakrishnan Balasubramanian by his father, who is the attested power of attorney holder. First respondent is the wife of Ramakrishnan Balasubramanian. Respondents 2 and 3 are police officials.
2. Prayer is for a direction to the respondents to secure the daughter of Ramakrishnan Balasubramanian and Respondent No.1. The marriage between Ramakrishnan Balasubramanian and Respondent No.1 took place in India on 4.7.1999. Thereafter the couple lived in United States of America. The daughter was born on 26.3.2004. Respondent No.1 has filed a petition for divorce in the year 2006 in the court of Pennsylvania in United States of America. Respondent No.1 has also filed a custody petition for the custody of the daughter. Even after filing of such proceedings for divorce, the husband and wife were residing in the same house. On 11.1.2007 the husband found that his wife – Respondent No.1 and the daughter – the alleged detenu, were absent. It has been stated :- “7. I state that the 1st respondent must have brought the child to India by forging my son’s signature in a letter as if my son gave his permission to take the child to India.” On 16.1.2007, the husband approached the Court of Common Pleas, Chester County, Pennsylavania for securing the custody of the child. The relevant portion of the order passed by such court is extracted hereunder :- “… 1. Until further order of Court, Father shall have SOLE LEGAL CUSTODY of NIKHITA RAMAKRISHNAN and Father shall have TEMPORARY SOLE PHYSICAL CUSTODY of the child.
2. Mother shall immediately return the child, and the child’s United States passport, to Father’s physical custody, or cause the child and the child’s passport to be returned to Father’s physical custody….” According to the petitioner’s case, in view of the order passed by the Court in U.S.A., the action of Respondent No.1 in keeping the child with herself in Madras (Chennai) is in contravention of the order passed by the American Court and amounts to illegal detention of the child against the court’s order and, therefore, the child should be secured and handed over so that she can be taken to United States of America to be handed over to the husband. In the Habeas Corpus Petition it has been stated that the child was ill-treated by the first respondent while at United States of America by beating the child and forcing the child to remain outside the home without adequate clothing. It is further alleged that during the last visit of the first respondent with the child to India, the child had suffered serious urinary infection because of the negligence of the mother. It has been further stated in the petition that after coming to India, Respondent No.1 with a view to harass the parents of the husband, has preferred baseless and illegal complaint alleging commission of offence under the Dowry Prohibition Act at “All Women Police Station, Mylapore”. It has been further stated that the deponent has lodged a complaint before the police on 19.1.2007, but no action was taken. Further complaint was filed on 22.1.2007 for recovery of the child from the illegal custody, but the third respondent refused to receive the same and subsequently such complaint was sent by registered post. On the basis of such allegations, the Habeas Corpus Petition, which was sworn to by the father of the petitioner-husband, was filed on 24.1.2007. Along with the petition, copy of the temporary custody order and copies of some other documents have been filed. A power of attorney executed by the petitioner in favour of his father authorising him to take action is filed.
3. After service of notice, Respondent No.1 has entered appearance and filed a counter affidavit. Marriage of the parties in India and subsequent birth of the child in United States of America is admitted. It is, however, stated in the counter that her husband had subjected her to extreme harassment and cruelty as a result of which she was forced to leave United States of America and come back to India. It has been further stated that O.P.No.193 of 2007 has been filed before I Addl. Family Court seeking for dissolution of marriage as well as custody of the child and alimony. It has been further stated that even though divorce proceedings had been initiated in September, 2006 in United States of America, she cannot continue the same as she is unable to live in United States of America due to the conduct of the husband. It has been further stated that there is no order of legal separation between the parties and the proceedings were pending at the time when she came to India. It is alleged that the conduct of the husband was unbearable and she was subjected to cruelty and was left with no resources and she was employed in a part-time job in a bank to take care of the minor child. It has been further stated :- “4. … I submit that on 7th and 8th of January, 2007, the Petitioner’s son picked up a big quarrel with me threatened to finish me and take away the child. He also told me that he would see to it that my mother and I are on the streets. I told him that if this is a situation I would come away to India since there was no safety and security for me in the USA. I also told him that I would like to decide the future course of action in India which he acknowledged. I submit that I came away to India on 11.01.2007.” It has been further stated that no order regarding custody of the child had been passed while she was at United States of America and such order was passed only after she came to India. The allegation regarding ill-treatment of the child has been denied. It is asserted that a false complaint had been given to the Department of Children, Youth and families in United States of America, but the Department after investigation did not find any truth in the allegation. The fact that the child was suffering from urinary infection is not denied, but it is stated that there was no negligence on the part of the deponent. It has been further stated that appropriate proceedings had been initiated in India and the matter has been posted for the appearance on 22.2.2007 and she has already intimated her counsel in United States of America that she does not wish to proceed with the case filed in United States of America.
4. While the present Habeas Corpus Petition was pending, the husband came from United States of America. We had called upon the husband and wife to remain present in court with a view to explore the possibility of reconciliation or amicable settlement of the dispute. However, both the parties and their Advocates have clearly stated that there is no possibility of any reconciliation nor there is any possibility of amicable solution.
5. The main problem obviously is relating to custody of the child. Admittedly the child is yet to complete three years.
6. Learned counsel appearing for the petitioner has raised the following contentions : (1) In view of the order passed by the competent court in United States of America and in view of the provisions contained in Section 13 of the Code of Civil Procedure (hereinafter referred to as “the C.P.C.”), Respondent No.1 is bound to handover the custody of the child to the father. (2) Father being the natural guardian of the child, there is no justification for Respondent No.1 to bring the child from United States of America and to detain her illegally.
7. Learned counsel appearing for Respondent No.1, on the other hand, has raised the following contentions :- (1) In view of the provisions contained in Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother is entitled to retain custody of the minor child under the age of five. (2) The ex-parte order passed by United States of America court, while Respondent No.1 had already left United States of America, should not be enforced. Moreover, such order is not an order on merit and merely an ex-parte interim order. (3) Since Respondent No.1 has abandoned divorce proceedings in United States of America and initiated appropriate proceedings in the competent court in India, the matter should be decided in accordance with law applicable to the parties, who are admittedly governed by the Hindu Minority and Guardianship Act.
8. Before considering the main questions, certain undisputed facts may be noticed. (1) Both the husband and wife are Green card holders, even though they continue to be Indian citizens and passport holders. (2) The child being born in United States of America is obviously a citizen of United States of America by birth. (3) However, she is also an Indian citizen by virtue of the fact that she is the child of two Indian citizens. (This is so in view of the provisions contained in Section 4(1)(3) of the Indian Citizenship Act).
9. First contention of the counsel for the petitioner is based on the provisions contained in Section 13 C.P.C. The expression “foreign judgment” has been defined in Section 2(6) of the C.P.C. to mean the judgment of a foreign court.
10. The order relied upon by the petitioner expressly purports to be an interim order relating to interim custody until further orders. Therefore, such order cannot assume the characteristic of a foreign judgment as the order does not appear to be a final order. Moreover, such order was admittedly passed when Respondent No.1 had left the territorial jurisdiction of the court.
11. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court reported in AIR 1984 SC 1224 (SMT. SURINDER KAUR SANDHU v. HARBAX SINGH SANDHU AND ANOTHER). Even the counsel for Respondent No.1 has also placed reliance upon such decision. A careful reading of the said decision indicates that the question was relating to the validity of a final order of judgment and not an interlocutory order. Moreover, the Supreme Court, while considering the question as to whether minor should should be with the father or the mother, examined the question of welfare of the minor as an important consideration. The said decision will not come to the aid of the petitioner as, in the present case, the petitioner is relying upon an interim order and not a final order. Moreover, even assuming that the order relied upon is a final order, before directing handing over of the child pursuant to the said order, this Court is required to find out the welfare of the said which is of paramount importance. The Supreme Court observed :- “8. . . . On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand-parents. The father is a man without character who offered solicitation to the commission of his wife’s murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping of his wife. In this background, we do not regard the affluence of the husband’s parents to be a circumstance of such over-whelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the loving care of the mother ought not to be denied to him. The father is made of coarse stuff. The mother earns an income of # 100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy.
9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother.
10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. it cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modem theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where. the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing, him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington, (1945) 90 L Ed 95, which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.” (Emphasis added) Ultimately, the appeal was allowed and a direction was given giving custody of the child to the mother.
12. From a reading of the aforesaid decision, it is of course apparent that the Supreme Court in the said case found that the British Court had jurisdiction to decide the question of custody of the minor child, who was a British citizen. However, it cannot be said that the Supreme Court rested its decision merely on the ground that an order of a foreign court was to be enforced and obviously the Supreme Court considered the question of welfare of the minor.
13. Learned counsel for the petitioner has placed strong reliance upon the Full Bench decision of Kerala High Court reported in AIR 1970 Kerala 1 (MARGGARATE MARIA PULPARAMPIL NEE FELDMAN v. Dr. CHACKO PULPARAMPIL AND OTHERS). In the said decision, it was observed :- “14. Following the above decisions we hold that this Court should respect the order of the German Court and allow this petition unless such a course is not in the interests of the welfare of the children. We are aware that the father is the legal and the natural guardian. And it is arguable that even when the children are in the control of the mother, the legal custody continues with the father and that if the father takes the children from the mother his custody will not be illegal as he has got legal authority for the custody of the children. This certainly will not apply in all cases and in all circumstances. This is clear even from the decision in AIR 1914 PC 41 relied on by 1st respondent’s counsel. Whether the rule will apply in a case where there was a solemn agreement between the father and the mother that the children should be with the mother is doubtful. Authority is not wanting that in such cases a unilateral breach of that agreement by the father or the mother will not be countenanced by Courts. Whatever that be, if such an agreement is accepted by a court of competent jurisdiction and embodied in an order of that Court, we feel no doubt that that order can neither be ignored nor flouted with impunity by one of the spouses.”
14. Even the aforesaid decision recognizes the principle that while considering such aspects, paramount consideration is welfare of the child.
15. Whatever little doubt one could entertain on such aspects, in our considered opinion, the decision of the Supreme Court reported in AIR 2000 SC 1019 (SARITA SHARMA v. SUSHIL SHARMA), relied upon by learned counsel for Respondent No.1 makes the position very clear that while considering such aspects, notwithstanding the fact that there may be some foreign judgment, the court is required to weigh the welfare of the child as the prime consideration. In such decision, after noticing the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), it was observed :- “6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. . . . . Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away of U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights.” (Emphasis added)
16. Parties being admittedly Hindu, obviously the Hindu Minority and Guardianship Act, 1956 is applicable. Sections 6 and 7 of such Act being relevant, are extracted hereunder :- “6. Natural guardians of a Hindu minor.- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl – the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father; (c) in the case of a married girl – the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
7. Natural guardianship of adopted son.- The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.”
17. A conjoint reading of the aforesaid provisions makes it clear that father is the guardian of a minor child. However, when the child is less than five years, ordinarily custody of the child should be with the mother. Ultimately, the Court is required to find out what is best for the interest of the child and even in a fit case, custody of a minor child can be with a person other than the father and mother of the child. The paramount consideration is the welfare of the child.
18. Learned counsel appearing for the petitioner has cited at least a dozen decisions highlighting such aspect. It is not necessary to refer to all such decisions, save and except a few decisions of the Apex Court. In AIR 1982 SC 1276 (THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA), it was observed :- “17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
18. In Halsbury’s Laws of England, 3rd Edn., Vol.21, the Law is succinctly stated in para 428 at pp.193-194 in the following terms:- “428. Infant’s welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead. Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country.” (Emphasis added by us)
19. Learned counsel for the petitioner has placed strong reliance upon the decision of the Supreme Court reported in AIR 1987 SC 3 (MRS. ELIZABETH DINSHAW v. ARVAND M. DINSHAW AND ANOTHER), wherein the Supreme Court while upholding the prayer of the mother, an American, criticised the conduct of the Indian father, who had brought the child to India notwithstanding the order passed by the American Court. However, in the said decision, the Supreme Court also recognised the fact that interest and welfare of the minor is paramount by observing:- “8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole an predominant criterion what would best serve the interest and welfare of the minor.”
20. The other decisions of several High Courts, including those of Madras High Court, only reflect the aforesaid aspect that the child’s welfare is of paramount consideration and have recognized the various facets. From the conspectus of the decisions noticed and referred to above, it can be said that, while considering the question of grant of custody, even where one or the other party is armed with a decision of a competent foreign court, the Indian Court asked to give effect to the decision of such foreign court is not to be guided merely by the considerations highlighted in Section 13 CPC regarding enforceability of foreign judgment, but required to consider the welfare of the minor as the paramount consideration. This position is clear from the decision of the Supreme Court in AIR 1984 SC 1224 (cited supra), AIR 1970 KERALA 1 (cited supra), which have been relied upon by the counsel for the petitioner himself , and from the decision of the Supreme Court in AIR 2000 SC 1019 (cited supra). Keeping in view the aforesaid principle, the question to be now considered is whether custody of the minor child should be handed over to the father.
21. It is no doubt true that the father is armed with an order of the foreign court, but such order appears to be merely interlocutory. The materials which have been highlighted in the Habeas Corpus Petition either by the petitioner or even by Respondent No.1 have not focussed on the paramount consideration relating to welfare of the minor and both the parties are relying upon their so called rights. Father is relying upon the fact that under Section 6 of the Hindu Minority and Guardianship Act, he is the guardian of the minor child. He is also harping upon the interlocutory order passed by the American court. Mother of the child is emphasizing upon the proviso contained in Section 6(a) to the effect that the minor who has not completed the age of five years would ordinarily be with the mother. She also submitted that at the time when she came to India, there was no order relating to interim custody and, therefore, it cannot be said that she had willfully violated any order of the competent court.
22. A bare reading of Section 13 of the Hindu Minority and Guardianship Act, 1956 and the various decisions noticed earlier, leaves no room for doubt that notwithstanding the so called right of either parents to be the guardian, ultimately the welfare of the minor is of paramount consideration. The decisions which have been noted, only emphasis this aspect. The question as to what would constitute in the best interest of the minor would obviously depend upon several circumstances. As already noticed, materials which have been indicated in the petition or in the counter affidavit do not throw much light on such vital aspect. In such circumstances, we do not think it appropriate to finalise the matter relating to custody of the minor child on the basis of the incomplete materials in this Habeas Corpus Petition. On the other hand, since admittedly a proceeding has been initiated at the instance of the wife before the I Addl. Family Court, Madras and the husband has entered appearance and has taken time for filing counter, we direct that the question relating to custody should be finalised by the said court in accordance with law. It goes without saying that such court will decide the matter on the basis of the relevant evidence to be adduced by both the parties and our present order should not be construed as expressing any opinion on either way in the matter.
23. During pendency of this Habeas Corpus, some interim arrangement has been made giving opportunity to the father to take the child and to spend sometime with the child. We feel interest of justice would be served by directing that the mother shall permit the child to be with the father between 10.30 AM and 4.00 PM twice a week during working days, preferably on Monday and Thursday. For the aforesaid purpose, the child can be brought to the office of the concerned Advocate.
24. If the father of the child finds it difficult to stay on for finalisation of the proceedings, it would be obviously open for him to authorise his father, who has filed the present Habeas Corpus Petition, on his behalf to prosecute such proceedings before the concerned Family Court and it is expected that no unnecessary technical plea should be permitted to be raised on such aspect.
25. Keeping in view the urgency of the matter, we further direct the I Addl. Judge, Family Court, Madras to dispose of the matter by the end of June, 2007. Keeping in view the complexity of the matter, we further direct that both the parties shall be permitted to appear through their Advocates, if they so desire.
26. Subject to the aforesaid observations and directions, the Habeas Corpus Petition is disposed of. dpk
To
1. The Commissioner of Police,
Egmore, Chennai 600 008.
2. The Inspector of Police,
Chrompet Police Station,
Chrompet, Chennai.
3. The Public Prosecutor,
High Court, Madras.
4. The I Addl. Family Court Judge,
High Court Buildings,
Chennai 600 104.

Settle custody cases in 3 months: HC

2011-01-18T02:49:00.000-08:00

Chandigarh
Chandigarh for over six months will now be decided within three months.

Taking cognizance of long delays, the Punjab and Haryana High Court has also empowered the
district judges to deal with dereliction, if any, on part of the judicial officer in doing so. The
registrar (vigilance), Punjab and Haryana, have been appointed nodal officer for supervising the
entire exercise.

Though the exact number of such cases is not immediately known, some of the cases have
been pending for over a decade. Among the oldest is a case pending since 1998 in the
guardian court in Amritsar.

The directions to adopt proactive approach for aborting “unwarranted delays” came on a
petition filed by an Amritsar resident, seeking the custody of his minor granddaughter, following
the death of the girl’s parents. The girl is currently with her maternal grandparents. The matter
has been pending for over a year now.

Justice SD Anand asserted: The matters pertaining to child custody require utmost and
expeditious consideration. In case of embitterment between the estranged spouses, it is the
children who actually bear the brunt. They are deprived of simultaneous love and affection of
both the parents. It is they who suffer emotionally, and in silence too.

“As matters which are already six months old are concerned, the courts concerned shall ensure
their final disposal within three months from the date of this order.

“It will be personal administrative responsibility of the district judge to keep a tab on the
progress of the cases falling in the category. If the district judge finds any dereliction on the part
of the judicial officer concerned in expeditious disposal of cases of the category, he shall pass
appropriate order on the administrative side; and if required, refer the matter to the high court
for appropriate order in this context.

“If required, the court shall be entitled to consider duly notified preponement of the priority area
litigation of the indicated category....

“If there is any peculiar difficulty experienced by the judicial officer in the final disposal, he shall
be under duty to intimate facts hindering the progress to the district judges, who shall pass on
that information to the high court,” Justice Anand concluded.
: Child custody case pending in the subordinate courts of Punjab, Haryana and

Citations for Child Custody - Build up your case

2011-01-18T02:19:00.000-08:00

Further, few helpful “reasoning” for your kind preview to build up your clients case;

1. In Shoib @ Shebu v. Sabir Ali the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother's character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father's family.
Re.: 1986 (II) DMC 505 at 506 (All, HC)

2. In Bilkis w/o Munne Khan v. Munne Khan, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 2 1/2 years. It was found that she was residing at a distance from the husband's home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.
Re.: 1987 (32) M.P.L.J. 430

3. In Y. Varalakshmi v. Kanta Durga Prasad, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.
Re.: (1989) 1 DMC 379

4. In Lekh Raj Kukreja v. Smt Raymon, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother. Further in revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father
Re.: 1989 (38) DLT 137

5. In Shailaja J. Erram v. Jayant V. Erram, once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor - a son - expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.
Re.: 1990 (2) Mah LR 492