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CASE NO.: Appeal (civil)  6626 of 2004

PETITIONER: Sheila B. Das

RESPONDENT: P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR,J.

       The appellant, who is a paediatrician by profession,  was married to the respondent, who is a lawyer by  profession, on 29th March, 1989, at Thrissur in Kerala  under the provisions of the Special Marriage Act.  A girl  child, Ritwika, was born of the said marriage on 20th  June, 1993.         As will appear from the materials on record, the  appellant, for whatever reason, left her matrimonial home  at Thrissur on 26th February, 2000, alongwith the child  and went to Calicut without informing the respondent.   Subsequently, on coming to learn that the appellant was  staying at Calicut, the respondent moved an application  in the High Court at Kerala for a writ in the nature of  Habeas Corpus, which appears to have been disposed of  on 24th March, 2000 upon an undertaking given by the  appellant to bring the child  to Thrissur.       On 24th March, 2000, the respondent, alleging that  the minor child had been wrongfully removed from his  custody by the appellant, filed an application before the  Family Court at Thrissur  under Sections 7 and 25 of the  Guardians and Wards Act, 1890, and also Section 6 of  the Hindu Minority and Guardianship Act, 1956, which  came to be numbered as OP 193 of 2000 and OP 239 of  2000.         Before taking up the said two applications for  disposal, the learned Judge of the Family Court at  Thrissur took up the respondent’s application for interim  custody of the minor child  and on 27th April, 2000  interviewed  the  minor child in order to  elucidate her  views with regard to the respondent’s prayer for interim  custody.  No order was made at that time on the  respondent’s application for interim custody.  On 20th  March, 2001, the learned Judge of the Family Court at  Thrissur took up the two applications filed by the  respondent under Sections 7 and 25 of the Guardians  and Wards Act and under Section 6 of the Hindu  Minority and Guardianship Act for final disposal.  While  disposing  of the  matter  the learned Judge had occasion    to interview   the minor child once again before delivering  judgment and ultimately by his order of even date the  learned Judge of the Family Court at Thrissur allowed  the applicati16ons filed by the respondent by passing   the following order:-

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"1.  The respondent is directed to give  custody of the child to the petitioner the  father of the child, the natural guardian  immediately after closing of the schools  for summer vacation.

2.      The father shall take steps to  continue the study of the minor child in  CSM Central School Edaserry and steps  to restore all the facilities to the minor  child to enjoy her extra curricular  activities and studies also.

3.      The respondent mother is at liberty  to visit the child either at the home of the  petitioner or at school at any time.

4.      If the mother respondent shifts her  residence to a place within 10 kms.  radius of the school where the child is  studying the child can reside with the  mother for not less than three days in a  week.  The petitioner father shall not,  object to taking of the child by the mother  to her own house in such condition.

5.      The father the petitioner shall meet  all the expenses for the education, food  and cloths etc. of the minor child and the  mother of her own accord contribute to  the same anything for the child and the  father should not prohibit the mother  from giving the child anything for her  comfort and pleasant living.

6.      If the mother the respondent fails to  stay within 10 kms. radius of the CSM  central School, Edasserry however she is  entitled to get custody of the child for 2  days in any of the weekend in a month  and 10 days during the Summer vacation  and  2 days during the Onam hoilidays  excluding the Thiruvonam day.

7.      This arrangement for custody is  made on the basis of the prime  consideration for the welfare of the minor  child and in case there is any change in  the situation or circumstance affecting  the welfare of the minor child, both of the  parties are at liberty to approach this  court for fresh directions on the basis of  the changed circumstance.

       OP 239/2000 is partly allowed  prohibiting the respondent husband by a  permanent injunction from removing or  taking forcefully the "B" schedule articles  mentioned in the plant.  The parties in  both these cases are to suffer their costs."

       Being dissatisfied with the order of  the Family

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Court, the appellant herein filed  an appeal   in the  High  Court of Kerala,  being M.F.A.No.365/01, wherein by an  order dated 21st May, 2001, the order of the Family Court  was stayed.  The respondent thereupon filed an  application before the High Court for review  of  the said  order and in the pending proceedings,  a  direction was  given by the High Court to the Family Court at Calicut to  interview the minor child.  The report of the Family Court  was duly filed  before the High Court on 5th July, 2001.   From the said report, a copy of  which has been included  in the paperbook, it is evident that the minor child  preferred to  stay with her father and ultimately by its  order dated 25th July, 2001 the High Court vacated the  stay granted by it on 21st May, 2001.          On the application of the appellant herein, one Dr.  S.D. Singh, Psychiatrist, was also appointed by the High  Court on 14th September, 2001, to interview the  appellant and the respondent in order to make a  psychological evaluation and to submit a report.  On  such report being filed, the High Court by its order dated  31st May, 2002, granted custody of the minor child to the  respondent till the disposal of the appeal.      Soon thereafter, in June 2002, the respondent  filed  an application  for divorce before the Family Court at  Thrissur.  While the same was pending,  the appellant  filed a Special Leave Petition being S.L.P.( C)\005  C.C.No.6954/2002 against the order of the High Court  granting custody of the minor child to the respondent till  the disposal of the appeal.  The said Special Leave  Petition was dismissed on 9th September, 2002.  The  appeal filed by the appellant before the High Court  against the order of the learned Judge of the Family  Court allowing the respondent’s application under  Sections 7 and  25  of the Guardians and Wards Act,   being M.F.A. No.365/01, was also  dismissed on 16th  June, 2003.   Immediately, thereafter, on 28th June,  2003, the Family Court granted divorce to the parties.   Being aggrieved by the dismissal of her appeal,  being M.F.A.No.365/01, the appellant herein filed the  instant Special Leave Petition, being SLP ) No.  18961/2003, which after admission was renumbered as  Civil Appeal No.6626/2004.  On 20th July, 2004, the  appellant herein filed a petition in the pending Special  Leave Petition for interim visitation rights in respect of  her minor child for the  months of August and  September, 2004.  After  considering the submissions  made by the  appellant,  who was appearing in person,  and the learned counsel for the respondent, this Court  passed the following order:-

       "This petition has been filed by the  mother of minor girl-Ritwika, aged about  12 years, challenging the impugned order  of the High Court dated 16th June, 2003.   By the impugned order the High Court  confirmed the order of the Family Court  holding that it is in the best interest of  the child that she be in the custody of the  father.  The High Court, however,  permitted the petitioner to visit the child  at the house of the father once in a  month, that is, first Sunday of every  month and spend the whole day with the

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child there with a further stipulation that  she will not be removed from the father’s  house.   The petitioner and the  respondent have not been living together  since February, 2000.  The divorce  between them took place by order dated  26th June, 2003.

       On question of interim custody, in  terms of the order dated 30th April, 2003,  the Family Court Trichur, was directed to  make an order regarding the visitation  rights of the petitioner for the months of  May, June and July, 2004 so that the  petitioner may meet her daughter at the  place of some neutral person and, if  necessary, in the presence of a family  counsellor or such other person deemed  just, fit and proper by the Family Court.   The Family Court was directed to fix any  two days, in months of May, June and  July of 2004, considering the convenience  of the parties, when the petitioner may be  in a position to spend entire day with her  child.

       Pursuant to the above said order the  Family Court had fixed two days in the  months of May, June and July, 2004 so  that the petitioner could meet her  daughter on those days.  The Family  Court directed that the said meeting shall  take place in the room of family  counsellor in Court precincts.   According  to the petitioner the said arrangement  was not satisfactory, so much so that  ultimately she made a request to the  Family Court that instead of meeting her  daughter in the room of the family  counsellor, the earlier arrangement of  meeting her at father’s house was may be  restored.  The Family Court, however, did  not modify the order having regard to the  orders passed by this Court on 30th April,  2004.   It is, however, not necessary at  this stage to delve any further on this  aspect.                          Ritwika is studying in 7th class in a  school in Trichur.  Having heard  petitioner-in-person and learned counsel  for the respondent and on perusal of  record, we are of the view that without  prejudice to parties’ rights and  contentions in Special Leave Petition,  some interim order for visitation rights of  the petitioner for the months of August  and September, 2004 deserves to be  passed.  Accordingly, we direct as under:

(1)     The petitioner can visit the house of  the respondent at Trichur on every  Sunday commencing from 1st August,  2004 and be with Ritwika from 10.00  a.m. to 5.00 p.m.  During the stay of the

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petitioner at the house of the respondent,  only the widowed sister of the respondent  can remain present.   The respondent  shall not remain present in the house  during the said period.  It would be open  to the petitioner to take Ritwika for  outing, subject to the condition that  Ritwika readily agrees for it.  We also  hope that when at the house of the  respondent, the petitioner would be  properly looked after, insofar as, normal  facilities and courtesies are concerned;

(2)     We are informed that the school in  which Ritwika is studying shall be closed  for 7 days in the month of August, 2004  during Onam festival.  It would be open  to the petitioner to take the child for  outing during those holidays for a period  of three days. After the expiry of three  days, it will be the responsibility of the  petitioner to leave the child at the house  of the respondent.                  The arrangement about meeting on  every Sunday would also continue in the  month of September, 2004.

       List the matter on 5th October,  2004"

       The question relating to the appellant’s visitation  rights pending decision of the Special Leave Petition came  up for consideration before this Court again on 5th  October, 2004, when on a reference to its earlier order  dated 20th July, 2004, this Court further directed that  the appellant would be at liberty to move appropriate  applications in M.F.A.No.365/01, which had been  decided by the High Court on 16th June, 2003, and the  High Court on hearing the parties or their counsel would  pass such orders as it considered appropriate in respect  of the interim custody of  Ritwika during the Christmas  Holidays.  It was also clarified that till the matter was  finally decided by this Court, it would be open to the  appellant to make similar applications before the High  Court which would have to be considered on its own  merits, since it was felt that the High Court would be in a  better position to consider the local conditions and pass  interim orders including conditions, if any, required to be  placed on the parties.   As mentioned hereinbefore, on leave being granted,  the Special Leave Petition was renumbered as Civil  Appeal No.6626/04, which has been taken up by us for  final hearing and disposal. The appellant, who appeared in person, urged  that  both the Family Court  and the High Court had erred in  law in removing the minor child from the custody of the  mother to the father’s custody, having particular regard  to the fact that the minor girl was  still of tender age  and  had attained the age  when  a mother’s care  and  counseling was paramount for the health and well-being   of  the minor girl  child.  The appellant submitted that  the minor child would soon attain puberty when she  would need the guidance and instructions of a woman to

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enable her to deal with both physical and emotional  changes which take place during such period.     Apart from the above, the appellant, who, as stated  hereinbefore, is a doctor by profession, claimed to be in a  better position to take care of the needs of the minor in  comparison to the respondent who, it was alleged, had  little time at his disposal to look after the needs of the  minor child.           From the evidence adduced on behalf of the parties,  the appellant tried to point out that  from morning till  late at  night, the respondent was busy in court  with his  own work and  activities which left  the minor child  completely alone and   uncared for.  According to the  appellant, the respondent who had a farm house some  distance away from Thrissur, spent his week- ends and  even a major part of   the week days in the said farm  house.   The appellant urged, that as a mother, she knew  what was best for the child and being a professional  person herself she was in a position to provide the minor  not only with all such comforts as were necessary for her  proper and complete upbringing, but also with a good  education and to  create in her an interest in extra- curricular activities such as music and dancing.   The  appellant strongly urged that the respondent had never  had any concern for the minor child since her birth and  till the time when the appellant left  with her for Calicut.   The appellant contended that for 7 years after the birth of  the minor child, the appellant had single-handedly  brought up the minor since the respondent was too pre- occupied  with other activities to even notice her.   According to the appellant, the minor child was extremely  happy to be with her till the respondent  began to claim   custody of the minor and soon after  obtaining such  custody, he was able to  influence the minor to such  an  extent that she even went to  the extent of  informing the  learned Judge of the Family Court that  she preferred  to  stay with her father.         On this aspect of the matter, the appellant urged  that the minor had been exposed by the respondent to  what she termed as "Parental Alienation Syndrome".  She  urged that such a  phenomenon was noticeable  in   parents who had been separated and who are bent upon  poisoning the mind of their minor children  against the  other party.  According to the appellant, there could  otherwise be no other  explanation as to why even  after  being with the appellant for 7 years, the minor child had  expressed  a preference to be with her father  after she  was placed in his  custody.   The appellant laid stress on  her submissions that not only till the age of 8 years,  when custody of the minor child was given to him, but  even thereafter the respondent had all along been  an  absentee father taking little or  no  interest in the affairs  and   upbringing  of the minor child.  According to the  appellant, in view of the   peculiar habits of the  respondent, the minor child was left on her own much of  the time, which was neither desirable nor healthy for a  growing adolescent girl child.   Urging that she had the best interest of the minor  child at heart, the appellant submitted that although  under the provisions of Hindu Law by which the parties  were governed, the father is accepted as the natural  guardian of a minor, there were several instances where  the courts had accepted the mother as the natural  guardian of a minor in preference to the father even when

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he was  available.  Referring to Section 6 of the Hindu  Minority  and Guardianship Act, 1956, which provides  that the natural guardian of a Hindu minor in the case of  a boy or an unmarried girl is the father  and after him   the mother; provided that the custody of a minor who has  not completed the age of  5 years shall ordinarily be with  the mother, the appellant submitted that the aforesaid   provision had recognized the mother also as the natural  guardian of a minor.  It was urged that in various cases  the  Courts had considered the said provision and had  opined that there could be cases where in spite of the  father being available, the mother should be  treated to  be the natural guardian of a minor  having regard to the  incapacity of the father  to act as the natural guardian of  such minor. In support of her aforesaid submission, the  appellant referred to and relied on  the decision of this   Court in  Hoshie Shavaksha Dolikuka vs.  Thirty Hoshie  Dolikuka, reported in AIR  1984 SC 410,    wherein  having found the father of the minor to be disinterested  in the child’s welfare this Court held that the father was  not entitled to the custody of  the child.

The appellant also referred to and  relied on  a  Division Bench  decision  of  the Kerala High Court in the  case of  Kurian C. Jose vs. Meena Jose,   reported in   1992 (1)  KLT 818, wherein having regard to the fact that  the father   was  living with a concubine  who was none  else than the youngest sister of the mother, it was held  that the father was not entitled to act as  the guardian  of   the minor.  On a consideration  of  the  provisions of  Section  17 (3) of the Guardians and  Wards Act, 1890, it  was also held that a minor’s preference need not  necessarily be decisive but is only one of the factors to be  taken into consideration by the court while considering  the  question of custody. Reference was also made to another decision of this  Court in the case of  Kumar V. Jahgirdar  vs. Chethana  Ramatheertha, (2004) 2 SCC 688, wherein in  consideration of the interest of the  minor child, the  mother, who had re-married, was given custody of the   female  child  who was on the advent of puberty, on the  ground that at such an age a  female  child primarily  requires  a mother’s care and attention.  The Court was  of the view that  the absence of  female company in the  house  of the father was a relevant factor in deciding  the  grant of custody of the  minor female child. The appellant urged that the courts in the aforesaid  cases had considered the welfare of  the minor to be of  paramount importance in deciding the question  of  grant  of custody.  The appellant urged that notwithstanding the  fact that the minor child had expressed before the   learned Judge of the Family Court that she preferred to  be with the father, keeping in mind the fact that the  welfare of the minor was of paramount importance, the  court  should seriously consider whether the minor child  should be deprived of her mother’s company  during her  period of adolescence when she requires her mother’s  counselling and  guidance.  The appellant submitted that  while the respondent had indulged Ritwika so as to win  over her affection, the appellant had tried to instill  in her   mind a sense of  discipline which had obviously  caused  a certain amount of resentment  in Ritwika. The  appellant submitted that  the court should look  behind  the curtain to see what was best for the minor girl child

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at this very crucial  period of her growing up In support of her aforesaid submission, the  appellant referred to and relied on a  decision of the  Bombay High Court in the case of  Saraswatibai Shripad  Ved vs.  Shripad Vasanji Ved, AIR 1941 Bombay 103,  wherein  in a similar application  under the Guardians  and Wards Act, it was  held that  since the  minor’s  interest is the paramount consideration, the mother was  preferable to  the father as a guardian.  The appellant  emphasized the observation made in the judgment that if   the mother is a suitable person to take charge of the  child, it is quite  impossible  to find  an adequate   substitute for her for the custody of a child of tender  years notwithstanding the fact that the father remains as  the natural guardian of the minor. A similar view was expressed by this Court in the  case of  Rosy Jacob vs.  Jacob A. Chakramakkal,  AIR   1973 SC 2090, wherein  in the facts and circumstance  of  the case, the custody of the daughter (even though she  was more than 13 years of age ) and that of the youngest   minor son, was considered to be  more beneficial with the   wife rather than with the husband.                The appellant submitted that during the child’s  growing years, she had  from out of her own  professional  income, provided  her with amenities which  a growing  child needs, including admission and tuition fees for the  child’s schooling  in a  good school  and for extra- curricular activities.  The appellant submitted that she  had made  fixed deposits for the benefit  of the minor and  had even    taken  out   life insurance policies  where the  minor child had been made the  nominee.  The appellant  submitted that apart from the above, she had also made  various financial investments for the benefit of the minor  so that the minor child would not be wanting in   anything if she was allowed to remain with the appellant. The appellant submitted that although she had  been granted visitation rights by the  different interim  orders, since she was residing in Calicut and the  respondent was residing  in Thrissur, she was unable to   remain in  contact with her minor daughter on account of  the distance between Calicut and Thrissur.  In fact, the  appellant complained of the fact that on several  occasions when she had gone to meet her minor child at  the residence of the respondent, she had not been  allowed  to meet the child or to spend sufficient  time  with her.  The appellant submitted that the interest of  the minor child would be best served if her custody  was  given to the appellant. The claim of custody of the minor child made by the  appellant was very strongly resisted by the respondent  who denied all the various allegations levelled against  him regarding his alleged apathy towards the minor and  her development.  It was submitted on his behalf that till  the age of 7 years, the child had been living with both the  parents, and was well cared for and looked  after  during   this period.  The minor child was suddenly and  surreptitiously removed  from the respondent’s custody  by the appellant  who left her matrimonial home on 26th  February, 2000 without informing the appellant who had  gone out of Thrissur  on his professional work.  It was  submitted that only after coming to learn that the  appellant had removed the child to Calicut  that the  respondent was compelled to file a Habeas Corpus  Petition in the Kerala High Court which ended upon an  undertaking given by the appellant to bring the minor

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child to Thrissur.  It was only thereafter that the  respondent was compelled to file the application  under  Sections 7 and  25 of the Guardians and Wards Act and   under Section 6 of the Hindu Minority and Guardianship  Act,1956. According to the respondent, even though the  appellant had forcibly removed the minor to Calicut,  thereby depriving the respondent of the minor child’s  company, the said minor during her interview by the  learned Judge of the Family Court at Thrissur made her  preference to be with the father  known to the learned  Judge.

On behalf of the respondent, it was also submitted  that keeping in mind the fact that the girl child was  attaining the age of puberty, the  respondent had  arranged with his elder sister, who was  a retired  headmistress of a school, to come and stay with him  and  to attend to the minor’s needs during her growing years  when she required the guidance and counselling of  a  woman.  It was submitted that the said aspect of the  matter was duly considered by the Family Court as well  as by the High Court on the basis of an affidavit filed by  the respondent’s sister expressing her willingness to stay  with the respondent to look after the minor child. In addition to the above, it was  submitted on behalf  of the respondent that the Court had found  on evidence   that he had sufficient finances to look after and provide  for all the needs of the minor child.  In any event, what  was of paramount importance was the welfare  of the  minor and the court had also taken into consideration  the preference expressed by the minor in terms of   Section 17 (3) of the Guardians and Wards Act, 1890.

On behalf of the respondent it was submitted that  the respondent was quite alive to the fact that the minor  child should not be deprived of her mother’s company  and that for the said purpose, the appellant was welcome  to visit the minor child either at the respondent’s house   or in some neutral place and to  even keep the  child with  her on specified days if she was  ready and willing to stay  with the appellant.  What was sought to be  emphasized   on behalf of the respondent was that in the  interest of  the child  she should be allowed to remain  with him  since he was better equipped to look after the minor,  besides being her natural guardian and also having  regard to the wishes of the minor herself.   Having  regard to the complexities of the situation  in which we have been called upon to balance the   emotional confrontation of the parents of the minor child  and  the welfare of the minor, we have given anxious  thought to what would be in the best interest of the  minor.  We have ourselves spoken to the minor girl,  without either of the parents being  present, in order to  ascertain her preference in the matter.  The child  who is    a little more than 12 years of age  is  highly intelligent,  having consistently done extremely well in her studies  in  school, and we were convinced that despite the tussle  between  her parents, she would be in  a position to  make an intelligent choice   with regard to her  custody.   From our discussion with the minor, we have been able  to gather that  though she has no animosity  as such  towards her mother, she would  prefer to be with the  father with whom she felt more comfortable.  The minor  child also informed us that she had established a very

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good relationship with her  paternal aunt who was now  staying  in  her father’s  house and she was able to relate  to her aunt in matters which  would concern  a   growing  girl during her period of adolescence. We have also considered  the various decisions   cited by the appellant  which were all  rendered in the  special  facts of each case.   In the said cases the father  on account of  specific considerations was not considered  to be suitable  to act as the guardian of the minor.  The  said decisions were rendered by the Courts  keeping in  view the fact that the paramount  consideration in such  cases was the interest and well-being  of the minor.  In  this case, we see no reason to consider the respondent   ineligible  to look after the minor.  In fact, after  having   obtained custody of the minor child, the respondent does  not appear to have  neglected the minor or to look after    all her needs.  The child appears to be happy  in the  respondent’s company and   has also  been doing  consistently well in  school.  The respondent appears to  be financially  stable  and  is not also disqualified in any  way from being the guardian of the minor child.  No  allegation, other than his  purported apathy towards the   minor, has been  levelled against the respondent by the  appellant.  Such an allegation  is  not  borne  out from  the  materials before us and  is not  sufficient to make  the respondent ineligible to act as the guardian of the  minor.

We, therefore, feel that  the interest of the minor will  be  best served if she remains with the respondent but  with sufficient access to the appellant to visit the minor   at frequent intervals but so as not to disturb and disrupt  her normal  studies and other activities.   We,   accordingly dispose of  this appeal by retaining the order  passed by the learned Judge of the Family Court at  Thrissur on 20.3.2001 while disposing of   O.P.No.193/2000 filed by the respondent herein under  Sections 7 and  25 of the Guardians and Wards Act,  1890 with the following modifications:-                                             1.      The respondent shall make arrangements for  Ritwika to continue her studies in her present  school and to ensure that she is able to take part in   extra-curricular activities as well.

2.      The respondent shall meet all the expenses of the  minor towards her education, health, care, food and  clothing and in the event the appellant also wishes  to contribute towards the upbringing of the child,  the respondent shall not create any obstruction to  and/or prevent  the appellant from also making  such contribution.

3.      The appellant will be at liberty to visit the minor  child either in the respondent’s house or in the  premises of a mutual  friend as may be agreed upon  on every  second Sunday of the month.  To enable  the  appellant  to meet the child, the respondent  shall ensure the child’s presence either in his house  or in the house of the mutual friend agreed upon  at  10.00 A.M.   The appellant will be entitled to take  the child out with her for the day, and to bring her  back to the respondent’s house or the premises of  the mutual friend within 7.00 P.M. in the evening.

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4.      In the event the appellant shifts  her residence to  the same city where the minor child will be staying,  the appellant will, in addition to the above, be  entitled to meet the minor on every second Saturday  of the month, and, if the child is willing, the  appellant will also be entitled  to keep the child   with her  overnight on such Saturday and return  her to the respondent’s custody by the following  Sunday evening at 7.00 P.M.    

5.      The appellant, upon prior intimation to the  respondent, will also be entitled to meet the minor  at her school once a week after school hours for  about an hour.  

6.      The appellant will also be entitled to the custody of  the minor for 10 consecutive days during the  summer vacation on dates to be mutually settled  between the parties.

7.      The aforesaid arrangement will continue for the  present, but the parties will be at liberty to  approach the Family Court at Thrissur for fresh  directions should the same become necessary on  account of changed circumstances.  

The parties will each bear their own costs.