MOHAN KUMAR RAYANA v.

KOMAL MOHAN RAYANA (SLP(Civil) No. 9821-9822 of 2009)

APRIL 6, 2010 [Altamas Kabir, G.S. Singhvi and Cyriac Joseph, JJ.]

2010 (4) SCR 402

The Judgment of the Court was delivered by

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.

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  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  

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 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 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 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 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 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 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 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 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 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 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 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 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 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  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 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, 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.