REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2628 OF 2009 (Arising out of SLP(C) No. 17184 of 2007)

Smt. Anjali Kapoor                                                               ……….Appellant

Versus

Rajiv Baijal                                                                           ……..Respondent

J U D G M E N T

H.L. Dattu,J.  

Leave granted.

1)This appeal is directed against the judgment and order passed by the

High Court of Judicature at Indore in Miscellaneous Appeal No. 750 of

2004 dated 03.08.2007.  By the impugned judgment, the High Court has

directed  that  the  custody  of  the  child  be  handed  over  to  the

respondent/father.  

2)The facts of case in brief  are:  - the respondent/Rajiv Baijal, had got

married  to  the appellant’s  daughter/Meghana on 16.01.1998 and lived

together  in  Pune  (Maharashtra).  Smt.  Meghana  went  to  Indore  to  the

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appellant’s  residence  for  delivery  of  the  child.  She  was  admitted  in

Noble Hospital, Indore and gave birth to a female child on 20.05.2001,

but she did not survive to see the new born baby. As the child was born

premature, she was kept in incubator in the hospital for nearly 45 days.

After discharge from the hospital, the infant was brought to the residence

of the appellant, and she was named Anagh. Add to the agony, just in a

span of two months, appellant lost her husband also on 29.07.2001.

3)The Respondent herein filed an application under Guardian and Wards

Act before the Family Court, inter-alia asserting that being the father of

the child Anagh, he is her natural guardian and therefore, entitled to the

custody of the child.  In support of the claim made, the respondent had

asserted before the Family Court  that Anagh was not  properly looked

after by the appellant and it was perilous for the child to continue in the

custody of the appellant. The respondent had also contended that after

the child was brought to the residence of the appellant he was repeatedly

requesting  the  appellant  and  her  family  members  to  hand  over  the

custody of the child to him, since the appellant is unable to take care of

the welfare of the minor child.  

4)In the reply filed, the appellant had contended, that, the respondent had

not  come  to  see  his  daughter  even  once  when  the  child  was  in  the

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intensive care unit  in the hospital.  She had further contended that  the

respondent is living separately from his parents and he has to be away

from his home town most of the time in a month in view of the nature of

the job he is involved in. It was also contended that the financial position

of  the  respondent  is  not  good  and  he  had  taken  loans  from several

persons,  and  in  order  to  repay the  same,  on  many occasions,  he  had

asked for financial help from the appellant and her family members. In a

nutshell, her claim before the Family Court was that it is not conducive

for the welfare of the child to be in the company of the respondent.

5)The Family Court, Indore in its  order dated 18.3.2004, has observed

that, it cannot be concluded that the respondent although has borrowed

money from several persons, will  not be in a position to bring up her

daughter  and bear  her  educational  expense.  The Court  has  also  taken

note  of  the  fact  that  the  child/Anagh  is  taken  care  of  by  appellant’s

brother-in-law, who has two grown-up children, and therefore, it cannot

be said that the respondent will not be in a position to take care of the

welfare of the child.  Therefore, giving priority to the welfare of minor

child,  it  is  advisable  to  give  custody  of  minor  child  -  Anagh  to  the

respondent, where she will be looked after well by respondent and his

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family members. Aggrieved by the said order, the appellant had carried

the matter to the High Court, by filing Misc. Appeal No.750 of 2004.  

6)The High Court in its judgment has held, that there are no compelling

reasons on the basis whereof the custody of the child should be denied to

her  father/respondent.  Respondent  has  been making  efforts  right  from

the infancy of the child for guardianship of the child which was strongly

resisted by his mother-in-law. The Court has also taken note of the fact

that,  the appellant  has  lost  her  husband and has,  therefore,  suffered  a

great financial set back. Therefore, for better upbringing and welfare of

the child, her custody should be entrusted to her father. Aggrieved by the

said judgment, appellant is before us.         

7)Notice was ordered to be issued to the respondent  on 28.09.2007 to

appear  before  the  court  on  16.10.2007.  Since  the  same  was  returned

unserved, a fresh notice came to be ordered.  Dasti, in addition was also

permitted for effecting service of the special leave petition on the sole

respondent.   In  view of  the  affidavit  of  dasti  notice  filed  by learned

counsel for petitioner, he was permitted to take out notice of the special

leave petition by publishing the same in two newspapers which has wide

circulation  in  Pune  (Maharashtra).   Even  this  was  carried  out  by the

petitioner  by  publishing  the  notice  of  special  leave  petition  in

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“Sandhyand”  and  “Free  Press”  which  has  wide  circulation  in  Pune

(Maharashtra).  In  spite  of  such  publication,  the  respondent  has  not

appeared  before  this  court  either  in  person  or  through  his  learned

counsel.  Therefore,  while  deciding  this  appeal,  we  did  not  have  the

assistance of either the respondent nor his learned counsel.  

8)The learned counsel for the appellant would contend, that, the appellant

is  financially  sound as she  has  a flourishing  garment  business  and is

residing in a joint family. Presently Anagh is being looked after by the

appellant’s family, and she is studying in a well known public school and

is  leading a happy life.  The counsel  would further  contend,  that,   the

respondent has meager income of Rs. 5,500 p.m. and will not be able to

take good care of Anagh. It  is  further  submitted that the respondent’s

mother  is  not  well  and  also  his  father  is  suffering  from High  Blood

Pressure and Asthama and they will also not be in a position to help the

respondent to take care of the daily needs of the minor child. The counsel

would further contend that respondent and any of his family members or

relative, after passing of the impugned order till date never contacted the

appellant to enquire about the welfare of Anagh. It is further submitted

that the respondent has lost interest not only in the case but also in his

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daughter, since he has contracted second marriage sometime during the

year 2007.

9) The question for our consideration is, whether in the present scenario

would it be proper to direct the appellant to hand over the custody of the

minor child/Anagh to the respondent.

10)Under the Guardian and Wards Act, 1890, the father is the guardian of

the minor child until he is found unfit to be the guardian of the minor

female child. In deciding such questions, the welfare of the minor child

is the paramount consideration and such a question cannot be decided

merely based upon the rights of the parties under the law (See Sumedha

Nagpal v. State of Delhi, (2000) 9 SCC 745).  

11)In the case of Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC

840,  this  Court  has  observed  that,  the  principle  on  which  the  Court

should decide the fitness of the guardian mainly depends on two factors:

(i)  the  father’s  fitness  or  otherwise  to  be  the  guardian,  and  (ii)  the

interests of the minors. This Court considering the welfare of the child

also stated that,  the children are not  mere chattels:  nor are they mere

playthings for their parents. Absolute right of parents over the destinies

and  the  lives  of  their  children  have,  in  the  modern  changed  social

conditions,  yielded  to  the  considerations  of  their  welfare  as  human

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beings so  that  they may grow up in  a normal  balanced manner  to  be

useful members of the society.”

12)In  Mrs.  Elizabeth  Dinshaw  Vs.  Arvand  M.  Dinshaw  and  Anr.

(AIR 1987 SC 3),   this  Court  has  observed that  whenever  a question

arises  before  Court  pertaining  to  the  custody  of  the  minor  child,  the

matter is  to be decided not on consideration of the legal  rights of the

parties  but  on the sole  and  predominant  criterion  of  what  would  best

serve the interest and welfare of the child.

13)At this stage, it may be useful to refer to the decision of Madras High

Court,  to  which  reference  is  made  by the  High  Court  in  the  case  of

Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has

observed, that, if a minor has for many years from a tender age lived with

grand parents or near relatives and has been well cared for and during

that time the minor’s father has shown a lack of interest in the minor,

these are circumstances of very great importance, having bearing upon

the question of the interest and welfare of the minor and on the banafide

of the petition by the father for their custody.

14)In our view, the observations made by the Madras High Court cannot

be taken exception by us.  In fact those  observations are tailored made to

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the facts pleaded by the appellant in this case. We respectfully agree with

the view expressed by the learned Judges in the aforesaid decision.

15)In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was

observed that, “… The dominant matter for the consideration of the court

is  the  welfare  of  the  child.  But  the  welfare  of  a  child  is  not  to  be

measured by money only, or by physical comfort only. 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

ties of affection be disregarded.”

16)In  American  Jurisprudence,  2nd  Edn.,  Vol.  39,  it  is  stated  that  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.”

17)In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The

New Zealand Court (cited by British Law Commission, Working Paper

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No. 96)  stated  that  “welfare  is  an all-encompassing  word.  It  includes

material welfare; both in the sense of adequacy of resources to provide a

pleasant home and a comfortable standard of living and in the sense of

an adequacy of care to ensure that good health and due personal pride are

maintained.  However,  while  material  considerations  have  their  place

they  are  secondary  matters.  More  important  are  the  stability  and  the

security, the loving and understanding care and guidance, the warm and

compassionate relationships that are essential for the full development of

the child’s own character, personality and talents.”

18)Bearing these factors in mind, we proceed to consider as to who is fit

and proper to be the guardian of the minor child Anagh in the facts and

circumstances of this case.  In the present case, the appellant is taking

care of Anagh, since her birth when she had to go through intensive care

in the hospital till today. The photographs produced by her along with

the  petition,  which  is  not  disputed  by  the  other  side  would  clearly

demonstrate,  the  amount  of  care,  affection  and  the  love  that  the

grandmother  has  for  the  child  having  lost  only  daughter  in  a  tragic

circumstances.  She wants to see her daughter’s image in her grand child.

She has bestowed her attention throughout for the welfare of reminiscent

of her  only daughter,  that is the minor child which is being dragged

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from  one  end  to  another  on  the  so  called  perception  of  judicial

precedents and the language employed by the legislatures on the  right

of natural guardian for the custody of minor child.

19)Anagh is staying with the appellant’s family and is also studying in

one of the reputed school in Indore. It must be stated that the appellant

has taken proper care and attention in upbringing of the child, which is

one of the important factor to be considered for the welfare of the child.

Anagh is with the appellant right from her childhood which has resulted

into a strong emotional bonding between the two and the appellant being

a woman herself can very well understand the needs of the child. It also

appears  that  appellant,  even after  her  husband’s  demise,  is  financially

sound as she runs her own independent business.  

20)On  the  other  hand,  considering  the  evidence  of  the  respondent,  it

seems to us that since he has borrowed money from several persons and

since  he  has  a  meager  income  he  may  not  be  in  a  position  to  give

comfortable living for the child . In spite of notices issued to him, he has

not appeared before the Court personally or through his counsel which

shows his lack of concern in the matter. It is also brought to our notice

that he has got married for the second time and has a child too, and the

minor child might have to be in the care of step mother, specially the

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father being a businessman, he has to be out of the house frequently on

account of his business.

21)Ordinarily, under the Guardian and Wards Act, the natural guardians

of the child have the right to the custody of the child, but that right is not

absolute and the Courts are expected to give paramount consideration to

the  welfare  of  the  minor  child.   The  child  has  remained  with  the

appellant/grandmother  for  a  long  time  and  is  growing  up  well  in  an

atmosphere which is conducive to its growth.  It may not be proper at

this stage for diverting the environment to which the child is used to.

Therefore, it is desirable to allow the appellant to retain the custody of

the child.

22)In view of the above discussion, we allow this appeal and set aside the

impugned order.   We permit  the appellant  to have the  custody of the

child till she attains the age of majority.  No order as to costs.

                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, April 17, 2009.

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