REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NOs.9821-9822 OF 2009

Mohan Kumar Rayana  … Petitioner

Vs.

Komal Mohan Rayana … Respondent

J U D G M E N T

Altamas Kabir, J.

1. These petitions involve the final stage of a  

custody battle on account of disruption and finally  

a  break  down  of  the  marriage  ties  between  the  

petitioner and the respondent.

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2. The petitioner and the respondent got married  

in Hyderabad on 11th August, 2000.  A girl child,  

Anisha, was born on 2nd March, 2002.  The nuclear  

family, along with the mother of the petitioner-

husband, resided together at Chamboor, Mumbai till  

July,  2004  when,  for  whatever  reason,  the  

respondent-wife left the matrimonial home to stay  

with her parents at Bandra.  On 24th November, 2005,  

with  the  help  of  police  personnel  from  Chamboor  

Police  Station,  she  took  away  Anisha  from  the  

custody of the petitioner’s mother.  The petitioner  

recovered  the  custody  of  the  daughter  on  30th  

November,  2005  and  this  resulted  in  both  the  

husband as well as the wife filing separate Custody  

Petitions  before  the  Family  Court  in  December,  

2005.   On  20th December,  2005,  the  Family  Court  

granted  weekend  access/visitation  right  to  the  

respondent-wife and by a subsequent order dated 15th  

September, 2006. the Family Court granted interim  

custody  of  the  child  to  the  petitioner-husband  

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pending hearing and final disposal of the Custody  

Petition.  The child remained in custody of the  

petitioner-father  between  November,  2005  and  2nd  

February, 2007, when the husband was directed to  

make  over  the  custody  of  the  child  to  the  

respondent-wife and since then she has been in the  

custody of the respondent-wife.

3. Two appeals being Family Court Appeal No.29 of  

2007 and Family Court Appeal No.61 of 2007 were  

filed by the petitioner-husband and the respondent-

wife respectively.  The Family Court Appeal No.29  

of 2007, which was filed by the petitioner-husband,  

was directed against the judgment and order of the  

Family Court directing that custody of the minor  

child be made over to the respondent-wife.  Despite  

the finding that during the period when Anisha was  

in  the  petitioner’s  custody  she  had  been  well  

looked after and cared for and the petitioner had  

dutifully  discharged  his  parental  responsibility  

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towards her.  In the other appeal, the respondent-

wife challenged the order of access made in favour  

of  the  petitioner-husband  on  every  alternate  

weekend and to share 50% of the School Vacations  

with the petitioner.  In fact, at one stage this  

matter  also  once  appeared  before  us  and  certain  

specific directions were given regarding the manner  

of  access  of  the  petitioner-husband  to  Anisha.  

While  disposing  of  the  pending  appeals,  the  

Division Bench of the High Court had occasion to  

consider the legal and practical approach regarding  

custody of the minor in the light of the well-

established  doctrine  that  in  these  cases,  the  

welfare and interest of the minor was the paramount  

consideration.   Having  dealt  with  the  relevant  

provisions of the Hindu Minority and Guardianship  

Act, 1956, since the parents as also the minor is a  

Hindu  and  while  passing  the  final  order  the  

Division Bench was fully alive to the fact that  

under Section 6 of the above Act the father is the  

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natural guardian of the person of the minor during  

his minority.  Despite the said legal position, the  

High Court, after carefully considering the various  

other aspects conducive to the child’s welfare, and  

despite the interim order of custody in favour of  

the petitioner-husband, chose not to interfere with  

the order of the Family Court and directed that the  

custody of minor Anisha should continue to be with  

her  mother,  the  respondent  herein,  and  that  

sufficient access provided to the petitioner-father  

would meet the ends of justice.  The petitioner’s  

prayer  for  Anisha’s  custody,  therefore,  was  

rejected  and  being  aggrieved  thereby,  the  

petitioner-husband  has  filed  the  instant  Special  

Leave Petition.

4. On  behalf  of  the  petitioner-husband  it  was  

urged that the judgment and order of the High Court  

suffered  from  various  infirmities.   It  was  

submitted that having found that Anisha had been  

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well looked after during the period of petitioner’s  

custody  and  the  respondent-wife  was  trying  to  

poison the child’s mind against the petitioner and  

having  also  held  that  from  the  psychiatric  

evaluation  made  that  the  respondent-wife  had  a  

manipulative  personality,  apart  from  having  a  

tendency  towards  psychosis  which  needed  medical  

attention, the High Court erroneously chose note to  

interfere  with  the  order  of  the  Family  Court  

directing custody of minor Anisha to be made over  

to the respondent-wife.  It was further urged that  

the  High  Court  had  not  properly  appreciated  the  

fact  that  when  the  respondent-wife  left  the  

matrimonial home in July, 2004 to pursue film and  

television career, she left Anisha behind when she  

was  only  2  years  and  4  months  old,  thereby  

virtually abandoning the child when she needed her  

mother’s care the most.  For more than 2 years she  

did not have any contact with Anisha till in May,  

2005 she forcibly removed Anisha from her paternal  

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grandmother’s custody.  It was submitted that the  

respondent-wife was so bent upon pursuing a career  

in  films  and  television  that  she  had  no  qualms  

about leaving a 2½ year old baby girl who needed  

her attention and motherly affection.        

5. Mr. Shyam Divan, learned Senior Advocate, who  

appeared  with  Dr.  A.M.  Singhvi,  learned  Senior  

Advocate,  for  the  appellant,  submitted  that  the  

final conclusion of the judgment and order of the  

High Court was against the grain of the findings  

therein regarding the petitioner’s ability to look  

after the welfare of the minor child.  Mr. Divan  

urged  that  both  the  parties  were  subjected  to  

psychiatric  evaluation  on  the  directions  of  the  

High  Court  and  in  all  the  reports,  and,  in  

particular,  in  the  report  dated  20th September,  

2007, submitted by Dr. Haridas, who was the Head of  

Department of Psychiatry, JJ Hospital, Mumbai, the  

respondent  was  diagnosed  with  a  histrionic  

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personality disorder of a nature that rendered her  

unfit for having custody of the child.  It was  

pointed out that in the said report it was also  

mentioned  that  the  respondent-wife  was  highly  

manipulative  and  readily  spoke  lies  even  for  

trivial matters and showed trends of psychosis.  On  

a comparative assessment of both the parties, the  

report  concluded  that  it  would  not  be  in  the  

interest of the child to keep her in the custody of  

respondent-mother and that, on the contrary, the  

petitioner-father  was  more  fit  and  capable  to  

undertake the upbringing of the child.  Mr. Divan  

submitted that even in the second report submitted  

on 22nd November, 2008, it was stated that there was  

no evidence to revise the recommendations made in  

the  earlier  report.   Mr.  Divan  submitted  that  

despite the opinion of the medical experts and the  

Court’s  own  findings  that  the  child  was  being  

manipulated,  tutored  and  poisoned  against  the  

petitioner-husband by the respondent-wife, the High  

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Court, as mentioned earlier, had erroneously chosen  

not to interfere with the order of the Family Court  

and in the ultimate analysis allowed the custody of  

the minor child to remain with the respondent-wife.

6. It was also submitted that in the face of the  

opinion of experts, the Family Court ought not to  

have  relied  upon  the  statements  made  by  the  

Counsellors appointed by it or on the evidence of  

Shridhar  Khochare,  the  Secretary  of  the  Society  

where the parents of the respondent resided, or the  

evidence of Dr. Vivek Hebar who had also seen the  

respondent-wife  at  the  school  where  Anisha  was  

studying.  It was submitted that as against the  

opinion  of  Dr.  Anjali  Chhabaria,  wherein  it  was  

clearly stated that Anisha had confided in her that  

the respondent was mad and was not good, the Family  

Court ought not to have given undue importance to  

the  report  of  Mrs.  A.R.  Tulalwar  who  had  

interviewed Anisha on 13th January, 2006.  It was  

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also submitted that the attitude of the respondent-

wife  to  block  all  interaction  between  the  

petitioner and the child in order to alienate the  

child completely from the petitioner and to deprive  

her of the petitioner’s love and affection as a  

father, was also a factor which went against the  

respondent being given custody of the minor.  Mr.  

Divan submitted that obsession of the respondent-

wife for exclusive custody of the minor child was  

commented upon by the High Court and the very fact  

that she has also filed an appeal only with regard  

to  50%  access  given  to  the  petitioner-husband  

during the minor’s school vacations, also made her  

obsession for exclusive custody, to the detriment  

of  the  child’s  interest,  very  clear.   It  was  

submitted  that  a  parent  who  poisons  the  child’s  

mind against her father does not act in the child’s  

welfare  and  should  not,  therefore,  be  entrusted  

with the custody of the child.  Mr. Divan submitted  

that the minor child requires love and care of both  

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the parents and even if the relationship between  

the  two  are  disrupted,  the  child  should  not  be  

deprived of a meaningful relationship with both the  

parents.  It was urged that while the wishes of the  

minor are to be considered seriously in deciding a  

matter  of  custody,  the  same  was  not  the  sole  

criteria and it would have to be seen as to who  

would be more suitable for the upbringing of the  

child, who, till November, 2005, when the child was  

about 3½  years’ old, did not even make an attempt  

to meet the child and was prepared to sacrifice the  

welfare of the child in order to pursue a film and  

television  career.   Mr.  Divan  submitted  that  in  

view  of  the  conduct  of  the  respondent  and  her  

denial of access to the minor despite the orders of  

this Court, the respondent should not be allowed to  

enjoy the fruits of her conduct.

7. In  this  regard,  Mr.  Divan  referred  to  the  

decision of this Court in Gaurav Nagpal vs. Sumedha  

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Nagpal [(2009) 1 SCC 42], wherein this Court, inter  

alia, held that the paramount consideration of the  

Court in determining the question as to who should  

be  given  the  custody  of  a  minor  child,  is  the  

“welfare  of  the  child”  and  not  rights  of  the  

parents under the statute for the time being in  

force or what the parties say.  The Court has to  

give  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  

values should also be noted.  They are equal, if  

not more important than the other.  When the Court  

is confronted with conflicting statements made by  

the  parents,  each  time  it  has  to  justify  the  

demands and has not only to look at the issue on a  

legalistic basis but human angles are also to be  

considered as relevant for deciding the issues.  In  

the facts of the said case where the father had  

flouted  the  orders  of  the  Court  in  keeping  the  

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custody of the minor child with him, this Court  

observed that he cannot be a beneficiary of his own  

wrongs and the said fact cannot be ignored while  

considering the father’s claim that the child had  

not been living with him since a long time.  It was  

also observed that in child custody matters there  

should be a proper balance between the rights of  

the parents and the welfare of the child and in  

such circumstances, the choice of the minor is also  

an important consideration.  Mr. Divan submitted  

that in the face of overwhelming evidence that the  

respondent should not be entrusted with the custody  

of the minor child, both the Family Court as well  

as the High Court quite inexplicably decided that  

the interest of the minor would be best served if  

custody  was  given  to  the  respondent.   It  was  

submitted that if the welfare and future interest  

of the minor was to be taken into consideration,  

the order of the Family Court as affirmed by the  

High Court, was liable to be set aside and the  

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custody of the minor child should be made over to  

the petitioner.

8. The submissions made by Mr. Shyam Divan were  

firmly  opposed  by  Ms.  Meenakshi  Lekhi,  learned  

Advocate,  who  appeared  for  the  respondent-wife.  

Learned counsel submitted that the allegation that  

the respondent-wife had abandoned her minor child  

was incorrect, since in March, 2005, when she left  

her matrimonial home, she took Anisha with her in  

terms of an arrangement between the petitioner and  

herself.  Ms. Lekhi submitted that this aspect of  

the matter had been examined at some length by the  

learned Judge, Family Court, Mumbai at Bandra in  

his  judgment  dated  2nd February,  2007  and  the  

allegation of the petitioner-husband that there was  

no  communication  between  the  respondent  and  the  

minor daughter stood contradicted by the evidence  

on  record.   In  fact,  the  learned  Judge,  Family  

Court  had  gone  on  to  observe  that  the  contrary  

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stand  taken  by  the  petitioner-husband  and  the  

positive  statement  brought  out  in  his  cross-

examination  was  sufficient  to  dislodge  his  case  

that the respondent-wife had abandoned the child.   

9. Ms.  Lekhi  also  submitted  that  Mrs.  A.R.  

Tulalwar,  Marriage  Counsellor  appointed  by  the  

Principal  Judge,  Family  Court,  to  ascertain  the  

wishes of the minor child for the purpose of access  

by  the  respondent-wife,  had  in  her  final  report  

indicated  that  the  child  shared  a  normal  

relationship  with  the  respondent-wife  and  

considering her age she needed her mother’s company  

to strengthen the bond between them.  It was also  

observed  that  the  child  was  familiar  with  the  

mother and access would have to be worked out even  

outside the Court.  In her second interview report,  

Mrs. Tulalwar further observed that Anisha share a  

very  good  relationship  with  her  mother  and  was  

willing  to  spend  time  with  her  mother,  and,  in  

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fact, this was her need at her age.  Ms. Lekhi also  

referred to the interview which the Court had had  

with the child on 15th November, 2006, whereupon the  

Court concluded that as far as the wishes of the  

child were concerned, she did not want to leave her  

father as well as her mother, as she loved both of  

them very dearly and wanted them to reunite.

10. Ms.  Lekhi  submitted  that  the  allegations  

regarding  abandonment  of  the  child  by  the  

respondent-wife  were  not,  therefore,  believed  by  

the learned Principal Judge, Family Court, which  

ultimately  felt  that  it  would  be  in  the  best  

interest of the minor if her custody was made over  

to the respondent-wife.

11. As far as the allegations regarding denial of  

access by the respondent-wife to the petitioner to  

meet Anisha is concerned, it was urged that between  

2007  till  January,  2009,  the  petitioner  made  no  

attempt to exercise visitation rights given to him  

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and did not make any attempt to meet the child.  On  

the  other  hand,  the  petitioner  who  is  very  

successful  businessman  and  who  has  to  go  abroad  

very  often,  was  not  really  interested  in  the  

welfare of the child since a suggestion had also  

been made by Dr. Haridas that if the petitioner-

husband was not willing to accept custody of the  

child,  she  could  always  be  sent  to  a  boarding  

school.

12. Ms. Lekhi submitted that the order passed by  

the learned Principal Judge, Family Court, Mumbai  

at Bandra, as affirmed by the High Court, did not  

warrant  any  interference  and  the  Special  Leave  

Petitions were liable to be dismissed.

13. Having the interest of the minor in mind, we  

decided to meet her separately in order to make an  

assessment of her behavioural pattern towards both  

the petitioner as well as the respondent.  Much  

against the submissions which have been made during  

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the  course  of  hearing  of  the  matter,  Anisha  

appeared  to  have  no  inhibitions  in  meeting  the  

petitioner-father with whom she appeared to have an  

excellent understanding.  There was no evidence of  

Anisha being hostile to her father when they met  

each  other  in  our  presence.   From  the  various  

questions which we put to Anisha, who, in our view,  

is an extremely intelligent and precocious child,  

she wanted to enjoy the love and affection both of  

her father as well as her mother and even in our  

presence expressed the desire that what she wanted  

most  was  that  they  should  come  together  again.  

However,  Anisha  seems  to  prefer  her  mother’s  

company as the bonding between them is greater than  

the bonding with her father.  Anisha is a happy  

child, the way she is now and having regard to her  

age and the fact that she is a girl child, we are  

of the view that she requires her mother’s company  

more at this stage of her life.  There is no doubt  

that the petitioner is very fond of Anisha and is  

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very concerned about her welfare and future, but in  

view of his business commitments it would not be  

right or even practicable to disturb the status quo  

prevailing with regard to Anisha’s custody.  The  

conditions laid down by the High Court regarding  

visitation  rights  to  the  petitioner  are,  in  our  

view, sufficient for Anisha to experience the love  

and affection both of her father and mother.  There  

is  no  reason  why  the  petitioner,  who  will  have  

access to Anisha on holidays and weekends, cannot  

look after her welfare without having continuous  

custody of her person. As has repeatedly been said,  

in these matters the interest of the minor is of  

paramount importance to the Court which stands in  

loco parentis to the minor.  Of course, the wishes  

of the minor are to be given due weightage, and, in  

the instant case, the same has been done.

14. We, therefore, see no reason to interfere with  

the order passed by the learned Principal Judge,  

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Family Court, Mumbai at Bandra, as affirmed by the  

Bombay High Court.

15. The Special Leave Petitions are, accordingly,  

dismissed  and  all  interim  orders  are  hereby  

dissolved.

                                            ……………… …………………………J.

(ALTAMAS KABIR)

…………………………………………J. (G.S. SINGHVI)

…………………………………………J. (CYRIAC JOSEPH)

New Delhi Dated:06.04.2010.

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