REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5099 OF 2007

Gaurav Nagpal …Appellant

Versus

Sumedha Nagpal ….Respondent  

(With Criminal Appeal NO. 491 of 2006)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Punjab and Haryana High Court dismissing the appeal filed by the

appellant.  Learned  District  Judge,  Gurgaon,  had  allowed  the  application

filed by the  respondent-wife  under  Section  6 of  the Hindu Minority and

Guardianship  Act,  1956 (in  short  the  ’Act’)  alongwith  Section 25 of the

Guardians and Wards Act, 1890 (in short ‘Guardian Act’).   

2. Matrimonial discords are on the rise at an alarming rate. The sanctity

of  marriages  is  under  cloud,  which  in  a great  way affects  the  society  at

large.  Individuals can in no way be segregated from the society to which

they belong. The cultural heritage of a country is greatly influenced by a

pattern of behaviour of individuals  and more so in matters of matrimony.

Home can be a wonderful place to live. But continuous fights between the

partners of a marriage disturb the atmosphere at home and create havoc on

the members  of  a family. One does not  need a mansion to lead a happy

marital home.  The foundation of a happy home is love, sharing of joys and

sorrows,  and  not  in  that  sense  bricks  and  concrete.   There  should  be

cementing of hearts and not cementing of floors and walls.  Life is a series

of awakening.  The happiness which brings enduring worth to life is not the

superficial happiness that is dependent on circumstances. Ultimately, in the

fight between the partners, the victims more often than not are the children.

It  is  unfortunate  that  in  their  fight  more often on  account  of  egoism the

children  suffer,  more  particularly  when  the  child  is  a  girl.  It  is  not

uncommon to  see  that  at  the  time  of  negotiation  of  marriage,  the  boy’s

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parents shy away because the girl is from a broken family and/or the parents

are divorced.  The child has practically no role in breaking of the marriage,

but he or she suffers. The marital discord sometimes reaches a stage where

the parties are unmindful of what psychological, mental and physical impact

it has on children.  It is worse when there is a single child, be it a boy or a

girl. The case at hand is a classic example where the child has become the

focus of controversy.  Bitter legal fights have been fought and the corridors

of several courts including the Supreme Court have been travelled by the

parties. Efforts have been made unsuccessfully to bring about conciliation

between the parties.  The best  way to  make children good said a learned

author is to make them happy.  

3. A  brief  reference  to  the  factual  aspects  leaving  out  the  maize  of

unnecessary facts would suffice.  

The  parties  got  married  on  14.10.1996  and  the  child  from  their

wedlock was born on 15.11.1997. According to the appellant, respondent

abandoned the child  on 8.8.1999 but  she filed a Habeas  Corpus  Petition

before the Delhi High Court on 25.8.1999. The High Court dismissed the

petition on the ground of territorial jurisdiction.  Respondent filed a Special

Leave Petition  against  the  High Court’s order dated 14.1.2000 and also

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filed a Writ Petition under Article 32 of the Constitution of India, 1950 (in

short  the ‘Constitution’).  This  Court  permitted  interim custody of  the 20

months old child with the appellant.  The respondent filed a maintenance

petition before the Delhi High Court  and also a petition for guardianship

before  a  learned  Additional  District  Judge,  Jhajjar.  The  same  was  later

withdrawn  and  the  petition  was  filed  in  the  District  Court,  Gurgaon.

Appellant  filed his reply opposing the application on the ground that the

respondent had deserted the child. By order dated 2.5.2002, learned Civil

Judge  dismissed  the  application  for  interim  custody  holding  that  any

disturbance by changing the custody of the child would traumatize him and

shall not be conducive to the welfare of the child  and it would affect the

mental balance of the child who had developed love and affection for his

father  and  his  family  members.  A  Revision  Petition  was  filed  by  the

respondent before the High Court.  The High Court granted the visitation

rights  to  the  respondent  by  order  30.9.2002  but  continued  the  interim

custody with the appellant.  The visitation rights fixed by the Court were in

the following terms:

(a) 9 a.m. to 5 p.m. on every last Saturday of the month.

(b) For a week in the aforesaid manner in summer vacations.

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(c) One day in Dussehra holidays (9 a.m. to 5 p.m.

(d) One day in Diwali Holidays (9 a.m. to 5 p.m.).

A contempt petition was filed for violation of the terms by the appellant.

The learned District Judge, Gurgaon allowed the petition of the respondent

and granted custody of the child to the respondent.  Appellant preferred an

appeal before the High Court against the order dated 6.1.2007. The High

Court passed an interim order staying the order of custody to the respondent

but  continued  the  order  with  respect  to  visitation  rights.  By order  dated

13.7.2007  the  appeal  filed  by  the  appellant  was  dismissed.  Though  the

initial  order  of  the  High  Court  was  stayed,  subsequently  by order  dated

29.10.2007 the visitation rights were continued.  

4. According to  the  appellant,  the  order  of  the  High  Court  is  clearly

wrong  on  several  counts.  The  order  passed  by  the  High  Court  dated

9.3.2005  convicting  the  appellant  for  contempt  of  court  has  also  been

assailed in Criminal Appeal No.491 of 2006.  The Trial Court came to hold

that since the child had remained with the appellant for a period of 7 years,

he appears to have made every possible effort  to obtain the custody of a

minor. The learned District Judge took note of the fact that taking of the

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child  from his  father’s  custody  may adversely  affect  the  sentiments  and

upbringing  of  the  child,  but  at  the  same  time  the  child  should  not  be

deprived the mother’s home.  

5. Stand of the appellant before the High Court was that the court below

had not held that he suffers from any disability in his role as a father and,

therefore, there was no comprehensive reason for the Court to direct custody

of the child to be entrusted to the respondent.  The fact that the respondent

was the mother  cannot be the  sole basis  for allowing the petition.  While

considering the prayer for the custody of the child, several factors including

the relationship between the parties and the minor are secondary.  It was

submitted that the minor was abandoned when he was about one year and

nine months old. Thereafter, in the garb of seeking custody several rounds

of litigation were unleashed.  

6. With reference to Section 6 of the Act it was submitted that the father

was  the  legal  guardian  and  the  welfare  of  the  minor  child  lies  with  the

appellant.  He has a large income and resides in a joint  family where the

minor is taken care of by the appellant,  his mother, brother and brother’s

wife and his three nephews.  The warmth of the joint family has led to an all

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round  development  of  the  child  and  by  taking  him  away  from  those

surroundings can deprive him of love and affection. The appellant lives in a

posh locality and the house is built on nearly 3000 sq. yards whereas the

respondent resides with her parents in a two-bed room flat.  Apart from that

the appellant  has a good educational  background and since the child has

been residing for the last more than seven years with him, the courts should

not have directed handing over custody to the respondent.         

7. It was further pointed out that the primary focus being the welfare of

the child, the respondent should have brought on record as to how with her

meagre income she would be able to provide good education to the child. It

was pointed out that the child is afraid of his mother and wrenching him

from the custody of the father would lead to irreparable mental trauma.   

8. So far as the contempt proceedings were concerned it was submitted

that  the  appellant  is  not  a  criminal  and  though  certain  cases  have  been

lodged against him they are related to some technical violations.  

9. The respondent’s stand on the other hand was that the appellant had

shifted his residence to Bahadurgarh by deception and fraud. From there the

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child was snatched from her custody on 1.8.1999. Since that date she has

approached various courts to seek custody of the child and for redressal of

her grievances.  The respondent got order relating to interim custody. For

failure  to  comply  with  the  orders  of  interim custody,  the  appellant  was

convicted by the High Court and sentenced to one month’s imprisonment

and though the order of sentence has been stayed, the order of conviction

still  continues  to  be in  force.  The appellant’s  conduct  in  disobeying  the

orders passed by the courts discloses that he has no respect or any regard for

the rule of law. It was further submitted that the child’s welfare cannot be

weighed in terms of money, facilities, area of a house or the financial might

of either the father or the mother. It was pointed out that  respondent had no

option  but  to  reside  with  her  parents  and  is  a  teacher  in  Salwan  Public

School. Merely because she was residing with the parents cannot disqualify

her from looking after her child. She may not be as financially sound as the

appellant, but that alone cannot disentitle her from the custody of the child.

She has stated that she was drawing a salary of Rs.13,000/-p.m. (which is

likely  to  be  substantially  increased)  and  was  receiving  Rs.25,000/-  as

maintenance pursuant to the order passed by the Delhi High Court and she

can look after  the financial needs for educating the child.  She resides in

Gulabi  Bagh  which  is  well  located  and  surrounded  and  there  is  a  park

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nearby. The colony has 8-10 parks and it is a better location where the child

can be well  developed.   Therefore,  it  cannot  be said  that  the respondent

resides in an area which is unsuitable to the minor child.  

10. It is  also pointed out  that  the appellant  has no fixed residence. He

shifted from Delhi to  Bahadurgarh  and then Gurgaon and back to Delhi in

a house in Sainik farm where the appellant claims to reside.  Same is owned

by his brother. It has been a deliberate attempt to poison the mind of the

child.  Negative  facts  have  been  fed  into  the  child’s  mind  against  the

respondent. It was further submitted that if sufficient time is given the child

would overcome any tutored prejudice.  Though, there was a claim that the

relatives  would  provide  healthy environment to  the child,  none of  them

stepped into  the  witness  box and affidavits  filed  much later  cannot  be a

substitute for the evidence in Court.  The High Court took note of Section

13 of  the  Act which  is  the  foundation  for  the  custody of  the  child.  The

welfare  of  the  minor  is  of  paramount  consideration.   The  High  Court

looking into the materials placed observed as follows:

“In view of the facts, noticed herein before, the question that exercises this Court’s mind is should the child be permitted to stay with a father, who inculcates fear and apprehension in the mind  of  minor,  against  his  mother  and  thwarts  court  orders with  impunity.  The  answer  to  the  above  questions,  in  my

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opinion,  must be in the negative. The appellant, cannot wish away his  role, in  the minor harboring such an irrational  fear towards the mother. I am conscious of the fact that directing the custody of the child to the respondent, may result in a degree of trauma. However, the daily trauma the child appears to undergo while being tutored against his mother would be far in excess of  the  trauma  likely  to  be  faced  while  entrusting  to  the respondent. The minor child must be allowed to grow up with a healthy  regard  for  both  parents.   A  parent  in  this  case,  the appellant,  who  poisons  the  minor’s  mind  against  the  other parent cannot possibly be stated to act for the welfare of the minor.”

11. It is submitted that the  High Court  was not oblivious of the financial

status  of  the  respondent.  The  High  Court  also  found  that  large  area  of

accommodation  and financial  affluence cannot  be a determinative  factor.

Therefore, the High Court did not find any scope for interference with the

order of the court below.  

12. In support of the appeal, learned counsel for the appellant re-iterated

the stand taken before the High Court. It was additionally submitted that the

child’s reluctance to go with the mother should have been duly considered

by the High Court. Apparently, that has not been done.  

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13. Strong  reliance  is  placed  on  a  decision  of  this  Court  in  Mausami

Moitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634) wherein this Court

on 12th May, 2008 dismissed the mother’s appeal, according to appellant, on

identical facts.  

14. The  Respondent,  who  appeared  in  person,  highlighted  the  stands

taken by her before the  learned District  Judge and the High Court.   The

main plank of appellant’s argument is to continue custody with the father.

The  appellant  has  managed  to  retain  the  custody  by  flouting  the  order

passed by this Court. It is pointed out by the respondent that for flouting the

orders of the Court the appellant has been convicted for contempt of court

which is the subject matter of challenge in criminal appeal. It was not the

first instance when the appellant flouted the order.  It is pointed out that the

factual scenario in Mausami Moitra’s  case (supra) was entirely different. In

that case,  courts below had analysed the material to conclude that it would

be desirable to give custody to the father. The factual scenario is entirely

different here.   

15. It is to be noticed as done at the threshold that in the present dispute

the child has become the victim.   

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16. It is pointed out by the respondent that she was not aware that the

appellant was a divorcee. The first wife was ill treated by the appellant and

his  relatives  on  account  of  alleged  meagre  dowry.  She  was  eventually

ousted  from the  matrimonial  home alongwith  a  minor  child.   Since  the

appellant  demanded  custody of  the  child  and  threatened  the  respondent,

information  was  lodged  at  the  Police  Station.  On  1.8.1999  while  the

respondent was attending to household chores, the appellant whisked away

their  minor  child  and  sent  him  to  some  unknown  place  at  Delhi.  The

respondent was bundled into a car and kept  in illegal  confinement at  the

house of one Sh. Bal Kishan Dang from where she escaped on 8.8.1999. She

sent  telegrams to  various  authorities  and a  formal  complaint  was lodged

with the Police Station,  Sarai  Rohilla alleging wrongful  confinement and

kidnapping of the child. In the meanwhile, the respondent’s father lodged a

complaint with the police at Bahadurgarh. The appellant was arrested and

produced before the  Court at Bahadurgarh.  An application was filed before

the Sub-Divisional Judicial Magistrate, Bahadurgarh, requesting the court to

hold an inquiry, as to the whereabouts of the minor child. The Magistrate

passed an order directing the appellant to produce the child on the next date

of hearing. However, as the respondent could not reach the court in time, the

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Magistrate  granted  bail  to  the  appellant  and  declined  the  prayer  for

production  of  the  minor  child.  Thereafter,  the  respondent,  filed  an

application for issuance of a writ in the nature of Habeas Corpus before the

High  Court  at  Delhi.  Despite  issuance  of  notice,  the  appellant  failed  to

produce the child. Eventually on 11.1.2000, the petition was dismissed for

want of territorial  jurisdiction.  The respondent,  thereafter,  filed a Special

Leave Petition before this Court, as also a writ petition under Article 32 of

the  Constitution.  Both  these  petitions  were  dismissed  by  this  Court,

directing the  respondent,  to  avail  her  remedy before the  Guardian Court.

The  respondent,  thereafter  filed  a  petition  under  Section  6  of  the  Act,

praying for the custody of the minor child. The respondent, prayed before

the Trial Court that as she was the mother of a minor child and as she did

not  suffer from any disability, the appellant  be directed to hand over the

custody of the minor child. It was averred in the petition that though the

appellant claimed to be the owner of various companies, he had committed

various frauds.

17. The appellant played fraud with the respondent by concealing the fact

that he was earlier married to one Alka Nagpal and  his marriage broke  as

he is supposed to have similarly tortured and harassed his wife  as was made

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out to the respondent.  It is the respondent’s case that as she was unable to

bear the physical and mental agony, Alka Nagpal committed suicide within

six months of her marriage. It  is  also pointed out  that the criminal cases

involving offences punishable under Sections 498A, 406, 323, 506, 343 and

109 IPC are pending in the CBI Court, Patiala against the appellant and  his

family members.  It is also pointed out that the child was shifted from one

school to another at various places in Haryana and Delhi.   

18. It was pointed out that the conduct of the appellant was noted by the

Local Commissioner of Police in his report on 10.10.2003 who committed

repeated defaults in bringing the child on various dates.  The High Court

noted that  fact  and came to a conclusion that  the appellant  had willfully

disobeyed the orders of  this Court and had poisoned the mind of the child

against the mother. It was further noted that the child could only meet the

mother with the help of a duty Magistrate.   

19. We shall first deal with law relating to custody in various countries.

English Law

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20. In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at

page 217 it has been stated;

“Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question,  the court  must  regard the minor's  welfare as the first  and  paramount  consideration, and  may  not  take  into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father."

(emphasis supplied)

It has also been stated that if the minor is of any age to exercise a

choice, the court  will  take his wishes into consideration.  (para 534; page

229).

21. Sometimes, a writ of habeas corpus is sought for custody of a minor

child. In such cases also, the paramount consideration which is required to

be kept in view by a writ-Court is ‘welfare of the child’.

22. In Habeas Corpus, Vol. I, page 581, Bailey states;

"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests

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of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety  would  seek  for  and obtain  the  best  substitute  which could  be  procured  yet  every  instinct  of  humanity  unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most  liberal  allowance  of  nurses'  wages  could  possibly stimulate."

23. It is further observed that an incidental aspect, which has a bearing on

the question, may also be adverted to. In determining whether it will be for

the best interests of a child to grant its custody to the father or mother, the

Court may properly consult the child, if it has sufficient judgment.

24. In  Mc Grath,  Re,  (1893)  1  Ch 143 :  62  LJ Ch 208,  Lindley,  L.J.

observed;

The dominant matter for the consideration of the Court is the welfare of the child.   But the welfare of the child is not to be measured by money only nor merely physical comfort. The word ‘welfare’ must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being.  Nor can the tie of affection be disregarded.

 (emphasis supplied)

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American Law

25. Law  in  the  United  States  is  also  not  different.  In  American

Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;

"As a rule, in the selection of a guardian of a minor,  the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield”. (emphasis supplied)

In para 148; pp.280-81; it is stated;

“Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight  as  a  claim  founded  on  human  nature  and  generally equitable and just.  Therefore, these cases are decided, not on the legal  right  of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's  view  of  the  best  interests  of  those  whose  welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In  short,  the  child's  welfare  is  the  supreme  consideration, irrespective  of  the  rights  and  wrongs  of  its  contending parents,  although  the  natural  rights  of  the  parents  are entitled to consideration.

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An application by a parent,  through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent  where  it  is  made  clearly  to  appear  that  by  reason  of unfitness  for  the  trust  or  of  other  sufficient  causes  the permanent  interests  of  the  child  would  be  sacrificed  by  a change of custody.  In determining whether it will be for the best interest of a child to award its custody to the father or mother,  the Court  may properly consult  the child,  if  it  has sufficient judgment”.

 (emphasis supplied)

26. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd

758; it was stated;

“In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the  Court  rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae,  for the protection of its  infant  ward,  and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity”.

It was further observed;

"The  employment  of  the  forms  of  habeas  corpus  in  a  child custody case is not for the purpose of testing the legality of a confinement  or  restraint  as  contemplated  by  the  ancient common law writ, or by statute, but the primary purpose is to furnish a  means  by  which the  court,  in  the  exercise  of  its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the  equities  involved  in  the  welfare  of  the  child,  against

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which the legal rights of no one, including the parents, are allowed to militate”.                            (emphasis supplied)

27. It was also indicated that ordinarily, the basis for issuance of a writ of

habeas corpus is an illegal detention; but in the case of such a writ sued out

for  the  detention  of  a child,  the  law is  concerned not  so  much with  the

illegality of the detention as with the welfare of the child.

28. The legal  position  in  India  follows the above doctrine.   There  are

various statutes which give legislative recognition to these well-established

principles.   It  would  be  appropriate  if  we examine  some of  the  statutes

dealing with the situation.  Guardians Act, consolidates and amends the law

relating to guardians and wards.  Section 4 of the said Act defines “minor”

as a person who has not attained the age of majority. “Guardian” means a

person having the care of the person of a minor or of his property, or of both

his person and property. “Ward” is defined as a minor for whose person or

property  or  both,  there  is  a  guardian.  Chapter  II  (Sections  5  to  19  of

Guardians Act) relates to appointment and declaration of guardians. Section

7 thereof deals with ‘power of the Court to make order as to guardianship’

and reads as under:

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7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—

(a) appointing a guardian of his   person or property, or both, or (b) declaring a person to be such a guardian,

the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian  who  has  not  been  appointed  by  will  or  other instrument or appointed or declared by the Court.

(3)  Where  a  guardian  has  been  appointed  by  will  or  other instrument  or  appointed  or  declared  by  the  Court,  an  order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

29. Section 8 of the Guardians Act enumerates persons entitled to apply

for  an  order  as  to  guardianship.  Section  9  empowers  the  Court  having

jurisdiction to entertain an application for guardianship. Sections 10 to 16

deal with procedure and powers of Court.  Section 17 is  another  material

provision and may be reproduced;

“17. Matters to be considered by the Court in appointing guardian.-(1)  In  appointing  or  declaring  the  guardian  of  a minor, the Court shall, subject to the provisions of this section, be  guided  by  what,  consistently  with  the  law  to  which  the minor  is  subject,  appears  in  the  circumstances  to  be  for  the welfare of the minor.

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(2) In considering what will be for the welfare of the minor, the Court  shall  have  regard  to  the  age,  sex  and  religion  of  the minor, the character and capacity of the proposed guardian and his  nearness  of  kin  to  the  minor,  the  wishes,  if  any,  of  a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3)  If  the  minor  is  old  enough  to  form  an  intelligent preference, the Court may consider that preference.

* * * * *

(5) The Court shall not appoint or declare any person to be a guardian against his will.

 (emphasis supplied)

30. Section 19 prohibits the Court from appointing guardians in certain

cases.

Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities

of guardians.  

31. The Act is another equally important statute relating to minority and

guardianship among Hindus.  Section 4 defines “minor” as a person who

has not completed the age of eighteen years.  “Guardian” means a person

having the care of the person of a minor or of his property or of both his

persons and property, and inter alia includes a natural guardian.  Section 2

of the Act declares that the provisions of the Act shall be in addition to, and

not in derogation of 1890 Act.  

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32. Section 6 enacts as to who can be said to be a natural guardian.  It

reads thus;

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).  

Explanation.—In  this  section,  the  expressions  “father” and “mother”  do  not  include  a  step-father  and  a  step- mother.   

33. Section  8  enumerates  powers  of  natural  guardian.   Section  13  is

extremely important provision and deals with welfare of a minor.  The same

may be quoted in extenso;  

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13. Welfare of minor to be paramount consideration.

(1)  In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No, person shall be entitled to the guardianship by virtue of the  provisions  of  this  Act  or  of  any  law  relating  to guardianship in marriage among Hindus, if the court is of opinion  that  his  or  her  guardianship  will  not  be  for  the welfare of the minor.   

(emphasis supplied)

34. Section 26 of the Hindu Marriage Act, 1955 provides for custody of

children and declares that in any proceeding under the said Act, the Court

could make, from time to time, such interim orders as it might deem just and

proper  with  respect  to  custody,  maintenance  and  education  of  minor

children, consistently with their wishes, wherever possible.

35. The principles  in relation to the  custody of  a minor child  are well

settled. In determining the question as to who should be given custody of a

minor child, the paramount consideration is the ‘welfare of the child’ and

not rights of the parents under a statute for the time being in force.

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36. The aforesaid statutory provisions came up for consideration before

Courts in India in several cases.  Let us deal with few decisions wherein the

courts  have  applied  the  principles  relating  to  grant  of  custody of  minor

children by taking into account their interest and well-being as paramount

consideration.

37. In  Saraswathibai Shripad v. Shripad Vasanji,  ILR 1941 Bom 455 :

AIR 1941 Bom 103; the High Court of Bombay stated;

“It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court.  It is the welfare of the minor  and the minor alone which is the paramount consideration.” (emphasis supplied)

38. In  Rosy Jacob v. Jacob A. Chakramakkal,  (1973) 1 SCC 840,  this

Court  held  that  object  and  purpose  of  1890  Act  is  not  merely  physical

custody  of  the  minor  but  due  protection  of  the  rights  of  ward’s  health,

maintenance and education. The power and duty of the Court under the Act

is the welfare of minor. In considering the question of welfare of minor, due

regard has of course to be given to the right of the father as natural guardian

but if the custody of the father cannot promote the welfare of the children,

he may be refused such guardianship.  

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39. Again, in  Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka,

(1982) 2 SCC 544, this Court reiterated that the only consideration of the

Court in deciding the question of custody of minor should be the welfare

and interest of the minor.  And it is the special duty and responsibility of the

Court.  Mature thinking is indeed necessary in such situation to decide what

will enure to the benefit and welfare of the child.

40. Merely  because  there  is  no  defect  in  his  personal  care  and  his

attachment for his children—which every normal parent has, he would not

be granted custody. Simply because the father loves his children and is not

shown  to  be  otherwise  undesirable  does  not  necessarily  lead  to  the

conclusion  that  the welfare of the children would be better  promoted by

granting their custody to him.  Children are not mere chattels nor are they

toys for their parents. Absolute right of parents over the destinies and the

lives of their children, in the modern changed social conditions must yield

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

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requirements  of  welfare  of  the  minor  children  and  the  rights  of  their

respective parents over them.

41. In  Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu,  (1984) 3

SCC 698, this Court held that Section 6 of the Act constitutes father as a

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. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1

SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC

6].

42. When the court is confronted with conflicting demands made by the

parents, each time it has to justify the demands. The Court  has not only to

look  at  the  issue  on  legalistic  basis,  in  such  matters  human  angles  are

relevant for deciding those issues. The court then does not give emphasis on

what the parties say, it has to exercise a jurisdiction which is aimed at the

welfare of the minor. As observed recently in  Mousami Moitra Ganguli’s

case  (supra),  the  Court  has  to  due  weightage  to  the  child’s  ordinary

contentment,  health,  education,  intellectual  development  and   favourable

surroundings  but over and above physical comforts, the moral and ethical

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values have also to be noted. They are equal if not more important than the

others.  

43. The word ‘welfare’ used in Section 13 of the Act has to be construed

literally  and  must  be  taken  in  its  widest  sense.   The  moral  and  ethical

welfare of the child must also weigh with the Court as well as its physical

well being.  Though the provisions of the special statutes which govern the

rights of the parents or guardians may be taken into consideration, there is

nothing which can stand in the way of the Court exercising its parens patriae

jurisdiction arising in such cases.

44. The trump card in appellants’ argument is that the child is living since

long with the father.  The argument is attractive. But the same overlooks a

very significant factor.  By flouting various orders, leading even to initiation

of contempt proceedings, the appellant has managed to keep custody of the

child.  He can not be a beneficiary of his own wrongs.  The High Court has

referred to these aspects in detail in the impugned judgments.  

45. The conclusions arrived at and reasons indicated by the High Court to

grant custody to the mother does not in our view suffer from any infirmity.

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It is true that taking the child out of the father’s custody may cause some

problems, but  that is bound to be neutralized.

46. Learned counsel for the appellant submitted that the child’s education

is  of  paramount  importance  and  the  father  is  spending  good  amount  of

money for providing him excellent education, and  the mother does not have

the financial  affluence as the appellant   claims to have.  But that can be

taken care of if father is asked to pay the educational expenses of the child

in addition to the maintenance being paid to the respondent.  But  at  the

same time it cannot be overlooked that the father needs to have visitation

rights of the child.   

47. In partial modification of the order passed by the District Judge and

the High Court, we direct that the visitation rights shall be in the following

terms:

(1) During long holidays/vacations covering more than two

weeks the child will be allowed to be in the company of

the father for a period of seven days.

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(2) The  period  shall  be  fixed  by  the  father  after  due

intimation to the mother who shall permit the child to go

with the father for the aforesaid period.

(3) For twice every month preferably on Saturday or Sunday

or a festival day, mother shall allow the child to visit the

father  from morning to evening.   Father  shall  take the

child and  leave him back at the mother’s place on such

days.

48. The  appeal  is  dismissed  subject  to  aforesaid  modifications.  Costs

fixed at Rs.25,000/-.

CRIMINAL APPEAL NO. 491 OF 2006

49. Though we find that the order of the High Court does not suffer from

any infirmity but taking into account the fact that we have dismissed the

connected Civil appeal relating to the custody of the child, while upholding

the  finding  of  guilt  for  disobeying  the  Court’s  order  and  committing

contempt of Court, we restrict  the sentence to the period already undergone.

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50. Before saying omega, we propose to make some general observations.

It is a disturbing phenomenon that large number of cases are flooding the

courts relating to divorce or judicial separation. An apprehension is gaining

ground that the provisions relating to divorce in the Hindu Marriage Act,

1950  (in  short  the  ‘Marriage Act’)  has led to  such a situation.  In other

words, the feeling is that the statute is facilitating breaking of homes rather

than saving them. This may be too wide a view because actions are suspect.

But that does not make the section invalid.  Actions may be bad, but not the

Section. The provisions relating to divorce categorise situations in which a

decree  for  divorce   can  be  sought  for.  Merely because  such a  course  is

available to be adopted, should not normally provide incentive to persons to

seek divorce, unless the marriage has irretrievably broken. Effort should be

to bring about conciliation to bridge the communication gap which lead to

such undesirable proceedings.  People rushing to courts for breaking up of

marriage should come as a last resort, and unless it has an inevitable result,

courts should try to bring about conciliation.  The emphasis should be on

saving marriage and not breaking it. As noted above, this is more important

in cases where the children bear the brunt of dissolution of marriage.   

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50. One must not lose faith in humanity.  It is an ocean; if a few drops of

the ocean are dirty, the ocean does not become dirty.  If nothing ever went

wrong in one’s life, he or she would never have a chance to grow stronger.

One  should  never  forget  that  today well  lived  makes  every  yesterday  a

dream of  happiness  and  tomorrow a  vision  of  hope.   Marital  happiness

depends upon mutual trust, respect and understanding.  A home should not

be  an  arena  for  ego  clashes  and  misunderstandings.   There  should  be

physical  and  mental  union.   Marriage  is  something,  Ibsen  said  in  “The

League of Youth” you have to give your whole mind to.  If marriages are

made  in  Heaven  as  Tennyson  said  in  Ayloner’s  Field,  why  make

matrimonial home hell is a big question.

51. The appeals are dismissed subject to the aforesaid modifications.  

…………………………..J. (Dr. ARIJIT PASAYAT)

…………………………..J. (G.S. SINGHVI)

New Delhi, November 19, 2008

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