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CASE NO.: Special Leave Petition (civil)  4230-4231 of 2003

PETITIONER: Kumar V. Jahgirdar

RESPONDENT: Chethana Ramatheertha

DATE OF JUDGMENT: 29/01/2004

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: JUDGMENT

Dharmadhikari J.

       In these two appeals, the subject matter of dispute between the  married couple, now separated by decree of divorce obtained on  mutual consent under the provisions of Hindu Marriage Act, 1955, is  their rival claim to the exclusive custody of their daughter \026 Aaruni  who is now little above 9 years of age and is prosecuting her education  in a well-known school in the city of Bangalore where the parties  reside.  

       After obtaining divorce on mutual consent, the wife \026 Smt.  Chethana Ramatheertha is re-married to Mr. Anil Kumble, a Cricketer  of national and international repute. The Family Court of Bangalore by  its judgment dated 20.4.2002, after considering the evidence led by  the parents of the child, came to the conclusion that as the wife is re- married to a famous cricketer and is leading a different style of life  involving frequent tours with her second husband for attending cricket  events, there is likelihood of child developing distance and dislike for  her natural father. The exclusive custody  of the child was directed to  be given to the natural father with only right of visitations to the  mother on every week on Sunday between 10 A.M. to 8 P.M. and to  keep the child with her overnight on two Sundays in a month with  prior intimation to her former husband.  

       The High Court, in appeal, by its impugned judgment dated  27.1.2003, has, however, taken a different view  and reversed the  judgment of the Family Court. On the basis of evidence on record, the  Division Bench of High Court has formed an opinion that in the  absence of compelling reasons and circumstances, the mother cannot  be deprived of the company of the child to the detriment of the  interest of the child. The High Court, therefore, set aside the judgment  of the family court and directed that the mother should continue to  retain exclusive custody of the child with visitation rights to her former  husband. The former husband is allowed to keep the child on week  ends either on Saturday or Sunday from morning till evening and he  can also be with the child during half the period of vacations in the  school. The stay of child with each of them during half of the  vacations, is to be shared by the two parents under mutual  agreement. The father is also allowed to visit the child as and when he  likes with the prior intimation and mutual arrangements with the  mother. The parties are also given liberty to seek necessary  modifications in the arrangement evolved by the High Court.  

       For deciding the controversy regarding the custody of the child,  only few more facts are relevant and required to be stated.

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       The parties were married in the year 1986 at Mysore and had a  married life for more than 12 years. The child \026 Aaruni was born to  them on 07.12.1994. When the child was little about two years old,  the wife took a job in Trans Oceanic Travels. Their marriage broke  down in the year 1998 when the wife left her matrimonial home and  sent a notice through her lawyer that she was unwilling to live with her  husband. On a joint petition, filed by the parties in the Family Court for  dissolution of marriage by mutual consent, a decree of divorce was  passed on 17.4.1999. The separated parents, in accordance with the  conditions of divorce by consent, agreed to their appointment as joint  guardians with periodic custody of the child. They also agreed to keep  the child alternatively in every week. As per the mutual arrangement  agreed between the couple, the wife took custody of the child for a  week in the year 1999. She soon thereafter got re-married to famous  cricketer \026 Mr. Anil Kumble on Ist July, 1999 and went out of the  country with her second husband leaving the child under the custody  of her former husband. On return from abroad with her second  husband, she filed an application in the Family Court on 12.8.1999  seeking exclusive custody of the child. The Family Court rejected her  application and the High Court, in revision, only granted liberty to the  parties to approach the Family Court for alteration or modification of  the terms of consent decree of divorce. Thereafter, the wife moved a  petition again to the Family Court for altering the conditions of divorce.  During pendency of those proceedings, with the permission of the  Family Court, she took the child with her while on tours with her  second husband.  

A counter application was filed by the present petitioner/her  former husband \026 Shri Kumar V. Jahgirdar  for exclusive custody of  the child on the ground that he being the natural guardian and having  remained unmarried with sole aim to bring up the child in congenial  atmosphere was better suited to be entrusted with her custody. It was  stated that the re-marriage of the wife is detrimental to the welfare of  the child.  

The wife from her side filed repeated applications in Family Court  seeking permission to take the child to foreign countries on tours with  her second husband. The Family Court granted such permissions but  on certain conditions.  

The wife went up by revision petition to the High Court and the  High Court directed that the child should be placed in the custody of  mother for a continuous period of one year. When the present  petitioner/her former husband appealed, this Court, after hearing the  learned counsel appearing for the parties, by order dated 18.4.2003  made an interim arrangement pending final orders on the pending  applications of the parties before the Family Court, Bangalore. The  mother was allowed to retain custody of the child with visitation rights  granted to the former husband every week on Saturday and Sunday.  It was also directed that during pendency of the cases before the  family court, if the mother is required to go out of the country, she will  not carry the child with her but leave the child in the custody of her  former husband during her absence. The family court was directed to  decide the case within four months.  

The family court in its judgment dated 20.4.2002 granted  exclusive custody of the child to the former husband with only right of  weekly visitations to the mother on the grounds inter alia that the  mother is re-married to a famous cricketer whereas the former  husband is still unmarried and his nature of business as a Stock   Broker is such that he is able to give required attention to the rearing  of the child. The family court also, on the basis of apprehensions  raised in evidence on behalf of the former husband, came to the  conclusion that custody of child with natural father would rule out  possibility of attempts on the part of the mother and her second

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husband to induce or create ill-will in the mind of the child towards her  natural father. The family court also recorded that during long periods  when the girl child lived with her natural father, she herself expressed  satisfaction and happiness.  

The wife appealed against the judgment of the family court to  the High Court. The child was interviewed twice by the Hon’ble Judges  of the High Court on 20.11.2002 and 05.12.2002. On the basis of  interviews with the child who is school going and aged about 9 years,  the High Court recorded in its judgment that the child expressed no  dislike or negative feelings towards any of her natural parents or her  step father. The High Court after examining the evidence on record  and interviewing the child, came to the conclusion that in the absence  of any compelling or adverse circumstances, the natural mother  cannot be deprived of the exclusive custody of a growing female child.  The judgment of the family court has been upset by giving exclusive  custody of the child to the natural mother with visitation rights on  week ends to the natural father on timings mentioned in the order.  Aggrieved by the order of the High Court, the former husband is, in  appeal, before us.  

       Learned senior counsel, Shri S.S. Javali appearing on behalf of  the petitioner/former husband took great pains by taking us through  the record of the case and particularly the relevant parts of the  depositions of the estranged couple and the second husband of the  wife. He severely criticised  certain  general remarks and statements  made by the High Court in the impugned judgment such as that  ’mother has an absolute right to keep company of the child unless  deprivation of it is required for compelling reasons’. It is argued that  such an erroneous approach on the part of the High Court, has  resulted in upsetting a just and very well-reasoned judgment of the  family court.  

From the arguments advanced on behalf of the former husband,  what we have been able to gather as more important circumstances  set up against allowing the wife to retain the custody of the child inter  alia are that the wife is re-married to a  cricket celebrity and has a  style of life which requires  frequent foreign tours, exposure to public  life and media. There is also possibility of the child being brain-washed  to keep distance from the natural father. On the behaviour of the child  during her interviews on two occasions, as has been recorded by the  High Court Judges, submission made is that it might have been so due  to psychological counselling given to the child. It is stated  that during  one of her interviews, a psychologist was found to be accompanying   her to the court before she child entered the Chamber of the Judges  for interview.  On behalf of the wife, the learned counsel stoutly denied  any such happening during hearing in court.

  On behalf of the former husband, learned counsel then very  strenuously submitted that his client has remained unmarried with one  single aim to rear and bring up his child in a congenial atmosphere of  love and affection which he alone can guarantee. In the present status  and style of life of his former wife, it is submitted that the former  husband was rightly held by the family court to be a preferable parent  to keep custody of the child. The father is also financially well-off and  has already acquired movable and immovable properties as also  deposited cash in the name of the child to ensure best of care and  education to her.  

       We have also heard learned senior counsel, Shri Gopal  Subramanium appearing on behalf of the wife, who has supported the  impugned judgment of the High Court and submits that the past  conduct of the wife and her second husband throughout the  proceedings in these cases belies the apprehension of the former  husband that the child’s mind would be poisoned against him.  The

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apprehension is stated to be completely baseless and imaginary.  Learned counsel assures on behalf of Mr. Anil Kumble, the second  husband of the wife, that he would continue to extend same love to  the child  and cooperation  to the natural parents as he has been doing  throughout in the past so that the child gets the best of care, affection  and education for her proper upbringing. It is submitted that as has  been desired by the High Court with the conditions imposed in its  orders, the parties would faithfully and sincerely continue with the  existing arrangement without any detriment to their mutual interests  and the interest of the child.  

       After hearing the learned counsel appearing for the parties at  sufficient length and having bestowed our careful consideration to the  observations and conclusions reached by the family court and the High  Court in their respective judgments, we do not find any ground to  substantially upset the judgement of the High Court containing the  arrangements made therein for the custody of the child and the rights  of visitation granted to the natural father.  

We make it clear that we do not subscribe to the general  observations and comments made by the High Court in favour of  mother as parent to be always a preferable to the father to retain  custody of the child. In our considered opinion, such generalisation in  favour of the mother should not have been made. We, however, do  not find that the judgment of the High Court is based solely on one  consideration that between two parents, the mother always can claim  superior right to retain the custody of the child. The High Court has  taken into consideration all other relevant facts and circumstances to  come to the conclusion that female child of growing age needs  company more of her mother compared to the father and remarriage  of the mother is not a disqualification for it. The conclusion of the High  Court seems to be just and proper in safeguarding the interest of the  child.  

       Without going into the allegations, counter allegations and  misapprehensions expressed against each other, on the paramount  consideration of best safeguarding the interest of the child, in our  opinion, the judgement of the High Court giving exclusive custody of  the child to the mother and visitation rights to the natural father  deserves to be maintained with little modification for the following  reasons :-  

1.      The child is, at present, 9 years of age and on advent of puberty.  This is the age in which she requires more care and attention of the  mother. Mother, at this age of the child,  deserves to continue to  keep the custody of the female child. She is reported to have given  up her service and now leading life of a house-wife. The progress  report of Aaruni from the Sophia High School, Bangalore, indicates  that she is very good at studies and has a bright educational career.  

2.      It is reported that the wife is presently on the family way. The  prospect of arrival of the second child in the family of the wife is  another circumstance which would be in favour of the present child.  

3.      The petitioner lives alone with his father. There are no female  members living jointly with him although he may have female  relations in the city but that would not ensure constant company,  care and attention to the female child.  

4.      The petitioner/natural father is a busy Stock Broker allegedly  carrying on his business with aid of on-line computer but it cannot  be said that in the course of his business, he has not to remain out  of residence for attending his office and other business  engagements.

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5.      The apprehension expressed against the second husband that he  might poison the mind of the child and create ill-will towards  natural father is not borne out from the evidence on record. On the  contrary, the second husband in his deposition has made  statements evincing a very cooperative and humane attitude on his  part towards the problem of the estranged couple and the child. We  find that apprehension expressed against the second husband is  without foundation. The parents of the child have separated by  mutual consent without making any vicious allegation against each  other. They also agreed under the express terms of the consent  decree of divorce to take responsibility of bringing up their child as  her joint guardians. This gesture of decency and cooperation in  jointly looking after the child has to continue. In this mutual  agreement of separated couple, on behalf of second husband, it is  assured to us that he would continue to give his unreserved  cooperation and help and would do nothing as to spoil the  relationship or intimacy of the child with the natural father.

6.      The visitation rights given to the natural father, in the present  circumstances, also do not require any modification because with  the passage of time, the growing child should eagerly wait for the  company of his father as a happy and enjoyable moment rather  than treat it as a part of empty ritual or duty. To make visitation  rights of natural father effective and meaningful for proper growth  of the child, active cooperation of  both the parents and her step  father is expected and we hope it would not be found wanting from  any one of them.  

7.      Since the mother of the child is married to a famous cricketer, as  and when she leaves the country on tour with her husband during  school days or vacation period of the child without taking the child  with her, in stead of leaving the child to the care and custody of  some other member of the family, the custody of the child during  her absence from her home shall be given to the natural father.

       With the above observations and modification, we maintain the  judgment of the High Court. The two appeals are, thus, disposed of. As  all the parties, before us, are highly educated, cultured, of modern  outlook, well-off and having so far conducted themselves decently and  courteously towards each other, we hope,  in future as well they will  continue same attitude and conduct for maintaining their cordial  relationships and extend full cooperation in safeguarding the interest  of the child in best possible manner.  

Looking to the nature of the case and the position of the parties,  they are directed to bear their own costs and expenses incurred in  these appeals.