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CASE NO.: Appeal (civil)  5131 of 2006

PETITIONER: Lekha                                                             

RESPONDENT: P. Anil Kumar                                                    

DATE OF JUDGMENT: 21/11/2006

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 19687/2005)

Dr. AR. Lakshmanan, J.

       Leave granted.

The present appeal is directed against the order of the  High Court of Kerala allowing matrimonial appeal for the  custody of the child of the respondent by reversing the finding  of fact arrived at by the trial Court.  The trial Court, after  considering the evidence on record and interviewing the child,  came to the conclusion that for the welfare of the child the  custody should be given to the mother and dismissed the  original petition of the respondent-father filed under the  Guardians and Wards Act holding that he is not entitled for  the custody of the child.  On appeal, the High Court reversed  the finding of the trial Court and directed to give the custody  of the child to the father without interviewing the child.  The  High Court also permitted the respondent to take the child to  Gulf.  BACKGROUND FACTS: The marriage between the appellant and the respondent  was solemnized on 31.01.1994 as per Hindu religious rites  and customs.  Out of the said wedlock, a son, namely, Rohit  Vishnu was born and he is 12 years old now.  At the time of  marriage, the respondent was employed abroad.  After  marriage the appellant and the respondent lived together for  2= months and thereafter they lived separately because of the  misunderstanding between them.  Since the harassment and  cruelty of the respondent crossed the extreme extent, the  appellant was compelled to file a petition for divorce on the  ground of cruelty.  The respondent filed a petition for  restitution of conjugal rights against the appellant.   Thereafter, the respondent filed an original petition under the  Guardians and Wards Act for the custody of the 11 years old  minor child.  The main allegation of the respondent was that  the appellant was having illegal intimacy with another person.   The second contention was that if the child is in the company  of the appellant, it would affect the education of the child.  The  respondent also contended that he is financially better than  the appellant and hence the custody of the child be given to  him.  The appellant defended the matter and filed a written  statement denying all the allegations.  In the meantime, the Subordinate Judge passed an ex-  parte decree for divorce in favour of the appellant and the  petition for restitution of conjugal rights filed by the

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respondent was dismissed for default.  After considering the oral evidence adduced by the  parties and examining the documentary evidence and also  interviewing the child, the trial Court came to the conclusion  that for the welfare of the child the custody should be given to  the mother and dismissed the original petition of the father  filed under the Guardians and Wards Act.  Against the order of the trial Court, the respondent filed  an appeal before the High Court of Kerala.  The contention of  the respondent was that contrary to the deposition made by  the appellant before the trial Court that she would not re- marry, immediately after the judgment of the petition filed  under the Guardians and Wards Act, she remarried.  It is,  therefore, contended that the continued custody of the child  with the appellant would be detrimental to the interest,  progress and welfare of the child.  The High Court, without giving an opportunity to express  the willingness of the child, allowed the appeal only on the  ground of remarriage of the appellant/mother of the child.   The High Court also held that the respondent-father is a  businessman in Saudi Arabia and the father is more apt and  suitable to protect the interest of the minor child and also in  imparting education to the required standard of the child.   Aggrieved against the order passed by the High Court, the  appellant has preferred the above civil appeal.  On  21.09.2005, the status quo was ordered by this Court.  We heard Mr. P.S. Narasimha, learned counsel for the  appellant and Mr. C.S.Rajan, learned senior counsel for the  respondent.  We have also interviewed the child in our  chamber for about an hour.   Mr. P.S. Narasimha, learned counsel for the appellant  submitted that the order of the High Court is unjustifiable  because before passing an order, the High Court ought to have  enquired about the mental make-up of the child to ascertain  whether he is willing to go with his father.  According to him,  the minor child is highly talented and the documents  produced by the appellant before the lower forum would  clearly show that he is extraordinary in his studies.  He  further submitted that the trial Court personally interviewed  the child.  He categorically stated that he wants to stay with  his mother.  He stated that the finding of the High Court that  before the trial Court, the appellant unequivocally deposed  that she would not re-marry for the purpose of looking after  the minor  child is totally wrong.  Arguing further, he  submitted that it is true that the appellant deposed that she  has no intention to remarry and that it does not mean that the  appellant gave an undertaking that she would continue to be  unmarried in her whole life.  Concluding his argument Mr.  Narasimha submitted that considering her age and for the  welfare of her minor child the appellant got remarried and in  the circumstances that mother also has land and properties in  her name, the finding of the High Court is only on the basis of  an oral submission and not from any documentary evidence,  hence the order of the High Court is liable to be set aside.  Mr. C.S. Rajan, learned senior counsel for the  respondent-husband submitted that the welfare of the minor  child is the only interest in the remaining life of the  respondent for which he is prepared to take any pain and task  in life.  The respondent being a natural guardian of the child,  the boy who is 12 years old will find it difficult to adjust with  his step-father and mother who now has a baby with her  second husband.  Mr. Rajan further submitted that the  appellant in her statement before the Addl. District Judge had  stated that she would not remarry in life and would look after  the child, which fact has been specifically stated in the

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judgment of the trial Court and in the High Court.  But quite  contrary to the statement, the appellant immediately after the  judgment of the District Judge remarried on 24.06.2005.  It is  further submitted that the appellant is now staying in her  present husband’s house in Varkala which is about 150 kms.  away from her parental house and, therefore, the appellant  will not be in a position to take full care of the minor child in  her changed circumstances.  Concluding his arguments, he  submitted that the respondent has purchased a car and  arranged the driver for the convenience of the child from the  house of the respondent to the school and back and that he  can also engage good teachers and tutors for giving special  attention to the studies of the child.  It is further submitted  that the respondent’s mother who is alone at home is very  healthy and active and can look after the child and that  besides his elder sister is also staying near his house in Kerala  and that the distance of the present school where the child is  studying is only 15 kms. from his house.  In the above  circumstances, he prayed that the civil appeal lacks question  of law to be decided by this Court and deserves dismissal.  On 16.11.2006, we interviewed the boy in our chambers.   The boy who is now 12 years old appears to be a bright boy.   He understands the questions put to him and gave apt replies.   At the time of interview, it was ascertained that he had no ill- will or hatred towards his father but at the same time, he is  not interested in living with the father permanently as he had  expressed his willingness to stay with his mother.  The minor  further stated that if he is allowed to stay with his mother,  that is better for his education and she will teach him  properly.  He also said that the appellant (mother) treats him  and the new born baby with same love and affection and there  is no discriminatory treatment.  He also further said that his  step-father also likes him very much and that he, therefore,  would prefer to live with his mother which will benefit his  education.  The boy also said about the re-marriage of the  mother and the birth of the child for his mother.  At the time  of interview, the boy unequivocally deposed that he would  continue to live with his mother since the mother is looking  after him with all her love and affection.  We have carefully perused the orders passed by both the  lower Courts and of the High Court.  The High Court, before  setting aside the concurrent finding passed by the courts  below, ought to have interviewed the child before coming to a  conclusion that for the welfare of the child the custody should  be given to the father.  Mr. Rajan submitted that since the  mother has remarried, she would not devote her time for the  welfare of the boy and that in the interest of the child, the  child should be given custody only to the father who is not  only healthy but also have other facilities to look after the  child, his education and welfare.  We are of the opinion that the remarriage of the mother  cannot be taken as a ground for not granting the custody of  the child to the mother.  The paramount consideration should  be given to the welfare of the child.  As already noticed, at the  interview, the boy has expressed his willingness and desire to  live only with his mother and was admitted by him that the  mother will provide him good education.  The mother is also  drawing pension of Rs.6,000/- p.m. and also having land and  properties in her name.  When the boy says he prefers to live  with his mother, we are of the view that it will be beneficial for  the boy and his education for a better future.  The High Court,  in our opinion, erred in allowing the appeal on the ground of  remarriage of the appellant without considering the other  aspects of the matter.  It is a matter of custody of the child  and the paramount consideration should be the welfare of the

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child.  It is not in dispute the boy is living with his mother for  the last several years and the separation at this stage will  affect the mental condition and the education of the child and  considering that the child himself attaches importance to his  education if the custody is to be given to the father  will now  affect his academic brilliance and future.  The High Court, in our opinion, ought to have seen that  the re-marriage cannot be taken as a ground for giving  custody of the child.  There is also no finding by the High  Court that the remarriage has adversely affected the mental  condition of the minor child.  Shaik Moidin v. Kunhadevi, AIR 1929 Madras 33 (Full  Bench).  The above was a case of a father, a motor driver,  applying for writ of Habeas Corpus to get custody of his 7 year  aged child.  Nobody was available in his house to look after  such child.  The Full Bench held that the Court has to look to  an application under Habeas Corpus in the interest of the  child as being paramount.  The Court held that prima- facie in  the eye of the law, the father is the natural guardian and  custodian of the person of his child. But it has been the law  for a very long time both in England and in this country that  what a Court has to look to on applications under habeas  corpus is the interest of the child as being paramount. In Samuel Stephen Richard v. Stella Richard AIR  1955 Mad 451, the High Court in deciding the question of  custody held as follows:- "In deciding the question of custody, the welfare of the minor  is the paramount consideration and the fact that the father  is the natural guardian would not ’ipso facto’ entitle him to  custody. The principal considerations or tests which have  been laid down under section 17, in order to secure this  welfare are equally applicable in considering the welfare of  the minor under section 25.

The application of these tests casts an ’arduous’ duty  on the court. Amongst the many and multifarious duties that  a Judge in Chambers performs by far the most onerous  duties are those cast upon him by the Guardians and Wards  Act. He should place himself in the position of a wise father  and be not tired of the worries which may be occasioned to  him in selecting a guardian best fitted to assure the welfare  of a minor and thereafter guide and control the guardian to  ensure the welfare of the ward-a no mean task but the  highest fulfillment of the dharmasastra of his own country.

It is only an extreme case where a mother may not  have the interest of her child most dear to her. Since it is the  mother who would have the interest of the minor most at  heart, the tender years of a child needing the care, protection  and guidance of the most interested person, the mother has  come to be preferred to others."

In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha  Dolikuka, AIR 1982 SC 1276, this Court held as under: "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."          

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According to the Hindu Law, the natural guardian of a  minor child is the father.  In the next place, the guardian of a  child is the mother.  The very principle of guardianship is that  there is a presumption that parents will be able to exercise  good care in the welfare of their children if they do not happen  to be unsuitable as guardians.   The law permits a person to have the custody of his  minor child.  The father ought to be the  guardian of the  person and property of the minor under ordinary  circumstances.  The fact that the mother has married again  after the divorce of her first husband is no ground for  depriving the mother of her parental right of custody.  In cases  like the present one, the mother may have shortcomings but  that does not imply that she is not deserving of the solace and  custody of her child.  If the Court forms the impression that  the mother is a normal and independent young woman and  shows no indication of imbalance of mind in her, then in the  end the custody of the minor child should not be refused to  her or else we would be really assenting to the proposition that  a second marriage involving a mother per se will operate  adversely  to a claim of a mother for the custody of her minor  child.  We are fortified in this view by the authority of the  Madras High Court in Sura Reddy vs. Chenna Reddy, AIR  1950 Madras 306 where Govinda Menon and Basheer Ahmed  Syed, JJ. have clearly laid down that the father ought to be a  guardian of the person and property of the minor under  ordinary circumstances and that fact a Hindu father has  married a second wife is no ground whatever for depriving him  of his parental right of custody.  A man in his social capacity may be reckless or eccentric  in certain respects and other may even develop a considerable  distaste for his company with some justification but all that is  a farcry from unfitness to have the natural solace of the  company of ones own children or for the duty of bringing them  up in proper manner.  Needless to say the respondent- husband, in this case, seems to be anxious to have the minor  child with him as early as possible in order to look after him  properly and to provide for his future education.  The feelings  being what they are between the respondent and the appellant  we think it is also natural on the part of the husband to feel  that if the minor child continues to live with his former wife, it  may be brought up to hate the father or to have a very adverse  impression about him.  This certainly is not desirable.   Needless to say, this Court is not called upon to find that the  respondent-husband has been entirely blameless in his  conduct and few occasions referred to in this case and by the  boy at the time of interview, it is not the duty of this Court  even to ascertain whether the respondent is of responsible and  good citizen and a preferred individual.  Many people have  shortcomings but that does not imply that they are not  deserving of the solace and custody of their children.   However, in the present case, we have to decide in the  interest of the child as to who would be in a better position to  look after the child’s welfare and interest.  The general view  that the Courts have taken is that the interest and welfare of  the child is paramount.  While it is no doubt true that under  the Hindu Law, the father is the natural guardian of a minor  after the age of six years, the Court while considering the  grant of custody of the minor to him has to take into account  other factors as well, such as the capacity of the father to look  after the child’s needs and to arrange for his upbringing.  It  also has to be seen whether in view of his other commitments,  the father is in any position to give personal attention to the  child’s over-all development.  As indicated hereinbefore, we have spoken to the child

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who, in our view, is intelligent and appears to be capable of  expressing his preference.  In fact, he has in no uncertain  terms indicated his desire to stay with his mother.  His  mother’s second marriage, instead of proving to be a  disadvantage, has proved to be beneficial for the child who  seems to be happy and contented in his present situation and  we do not think it would be right to unsettle the same.  The High Court committed a grave error in not  ascertaining the wishes of the minor, which has consistently  been held by the Courts to be of relevance in deciding grant of  custody of minor children.  We are, therefore, inclined to  restore the order passed by the Family Court and to give  custody of the minor boy to his mother, but as indicated  hereinbefore, we do not want the child to grow up without  knowing the love and affection of his natural father who too  has a right to help in the child’s upbringing.  We are of the  view that although the custody of the minor child is being  given to the mother, the child should also get sufficient  exposure to his natural father and accordingly we permit the  respondent to have custody of the child from the appellant  during Onam and other important festivals and during the  school vacation.  We make it clear that the appellant-mother  shall hand over the child to the respondent-father during every  mid summer vacation for about a month without adversely  affecting the child’s education.  The appellant should not also  prevent the respondent-father from coming to see the child  during weekends and the appellant should make necessary  arrangements for the respondent to meet his child on such  occasions.  The appellant should not also prevent the child  from receiving any gift that may be given by the respondent- father to the child.  In the result, the above civil appeal stands allowed and  the judgment and final order passed by the High Court of  Kerala in matrimonial appeal No. 208 of 2005 is set aside.   However, there will be no order as to costs.