Delhi High Court
Leeladhar Kachroo vs Umang Bhat Kachroo on 8 June, 2005
Equivalent citations: 121(2005)DLT218, II(2005)DMC193, 2005(82)DRJ609
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. The petitioner/husband and the respondent/wife, both Canadian citizens married in the year 1987 in India at Delhi. Two children, named Arjun Kachroo and Bhareth Kachroo were born to them. The dispute of custody arising in the present case is now confined to the younger son Bhareth aged about 9 years since the other son Arjun has almost attained majority.
2. In June 2001, the parties came to India to permanently settle down here, but after some time differences arose between the parties. A settlement was reached between the parties whereby it was agreed that:
(a) The respondent would go back to Canada and start her practice as Doctor.
(b) Both the children would also be admitted to their earlier school, Bay View Glen in Canada.
3. Thereafter, in December, 2003, the respondent, for the purposes of making arrangements to settle down there, went to Canada and came back to India in March, 2004 After she arrived in India, she claimed that she was denied access to both her children and, therefore, on 7th April, 2004, a guardianship petition No.116/2004 was moved by her in the Court of Guardian Judge, Delhi, who after considering all the circumstances of the case and welfare of the minor child, by the impugned order dated 10th November, 2004 has allowed the custody of the younger son Bhareth to the respondent, and the respondent has also been allowed to go to Canada along with the younger son Bhareth.
4. The main dispute in the present case relates to the custody of the minor child Bhareth. It is not in dispute that in so far as the child Arjun is concerned, he has almost attained majority and is capable of making decisions on his own. He is presently staying with his father. The learned counsel for the petitioner has assailed the order of the learned Additional District Judge which on the ground that the order at the interim stage does not take in to account the welfare of the child Bhareth and it was in his interest to stay with his father and his elder brother in Delhi and pursue studies in School at Gurgaon. The respondent/wife on the other hand supported the order impugned in the present petition by stating that the minor child's welfare was in his staying with the respondent mother who is a Doctor.
5. Before the rival pleas in this case are appreciated, the following perspective has to be kept in mind:
(a) The husband, wife and two sons all are Canadian citizens. The petitioner husband continues to be a Canadian citizen and has not forsaken his Canadian citizenship. He is on a long visa till the year 2021 in this Country. Since the marriage in 1987, the parties have always been in Canada and both the children were born in Canada and are Canadian Citizens.
(b) In 2000, a divorce petition was filed in Canada by the petitioner husband and eventually it was agreed that the parties will give the marriage another chance and in 2001, the parties came back and settled in India. It is not in dispute that the petitioner was a successful Merchant Banker and had earned enough money in his job in Canada and U.S.A. so as to live a comfortably placed retired life. Since 2001, the children are studying in Delhi.
6. The learned counsel for the petitioner Shri Rakesh Tikku challenged the impugned order inter alia on the following grounds:
(a) The impugned order is not conducive to the welfare of the younger child as the child has been well adjusted in Delhi/Gurgaon since 2001 and disturbing him at this stage will be counter productive.
(b) The children will lose the core Indian values if they are made to travel to Canada.
(c) The minor child's memory of Canada is as best hazy as he was there till he was aged 4 or 5 years when he shifted to India and consequently his connection with Canada is at best tenuous.
(d) This order could not have been passed at interlocutory stage and could have awaited for the final decision.
(e) There is no way to ensure that the respondent, a Canadian Citizen, will honour the final verdict of an Indian Court in respect of the custody in case it goes against the respondent since the writ of this Court will not run extra territorially.
(f) The respondent being a working mother in Canada will be required to work through out the day as well as on alternate Sundays and, therefore, will be unable to look after the child properly and child would be neglected as contrasted with India where the petitioner in the retirement mode shall be fully able to look after him and devote time for his upkeep.
(g) The younger brother Bhareth should not be deprived of the beneficial company of his elder brother particularly when they were both staying together in a suburb of Delhi at Gurgaon.
(h) The petitioner offered to look after the two children financially while being in India.
(i) The respondent being a single woman her living alone in Canada along with a child of 9 years would be unsafe for the child. There is no family support in Canada for the child and therefore the petitioner would be required to engage Nanny/child sitter for taking care of Bhareth. There is possibility of abuse of the child by the Nanny/child sitter.
(j) Due to her busy schedule, the respondent would not be available to pick up the child from the bus stop after the school hours and thereafter the child will be alone at home. In Canada, leaving a child less than 13 years of age alone is an offence which can lead to arrest of the defaulting parent and retention of the child in the orphanage.
(k) The respondent would be required to pay mortgage charges in toronto for the apartment.
(l) The order of the learned Guardianship Judge dated 20th June, 2004 finds that possibility of Bhareth being induced by the respondent cannot be ruled out.
(m) Respondent can get her employment in India as the medical profession is not confined to any territory.
7. The respondent on the contrary contended that :
(a) The child Bhareth needs his mother's love which cannot be substituted
(b) He needs to be away from the tension filled atmosphere in Delhi and he was also affected by the friendship of his father with a lady friend.
(c) Bhareth is happy and comfortable in the custody of the respondent and is not inclined to meet the petitioner.
(d) The respondent has got an established medical practice in toronto, Canada and for earning a decent livelihood she needs to go to Canada.
(e) In the order of Guardian Judge dated 10th November, 2004, it has been recorded that the petitioner has no objection if the permanent custody of Bhareth is retained by the respondent but reasonable visitation access be given to the petitioner and elder son Arjun.
(f) The respondent has been turned out of their matrimonial home in India.
(g) The petitioner initially had no objection to respondent's having custody of both the children (E-mail dated 19th November, 2003; petitioner's reply dated 23rd November, 2003) but he resoled from his commitment.
(h) The respondent's license to practice is recognized in Canada and not in India, therefore she can only practice in Canada.
(i) Even the eldest son who was presently studying in Delhi eventually has to migrate to Canada and that the eldest child had to repeat grade 11 during his stay with the father inspite of earlier academic excellence.
(j) The plea that the father devotes time to the children is belied by the fact that the elder son Arjun has been admitted to a boarding school. The child Arjun is also certain to travel abroad for his education after finishing his school. The child Bhareth is a citizen and natural habitant of Canada and admission to a good school has been secured for him and there are several single working mothers in Canada and elsewhere who successfully bring up children. A schedule of after school activities world ensure that Bhareth is well looked after in Canada and not isolated.
8. Various other allegations have been made by both spouses against each other which are not necessary to be gone into at this stage in these proceedings. This Court is only concerned with the welfare of the child which is of paramount importance and the internal wranglings between the spouses is of no relevance unless and until it affects the welfare of the children.
9. One of the most crucial circumstance in the present case is that the guardian judge interviewed the younger child Bhareth and ascertained his wishes. It is only after ascertaining the child's wishes that the impugned order permitting the respondent wife to take the younger child Bhareth with her was passed.
10. When this matter was listed in this Court, this court after hearing the counsel at length interviewed not only both the parents so as to effect a possible settlement which was abandoned considering the vast differences between the parties, but this court also interviewed the two children. This Court's interview with the elder child Arjun revealed that the child was confident if not over confident but seemed to have definite views on his further education abroad. When he was asked whether he want to study further in Canada after finishing his schooling in India, he avoided stating studying in Canada as a possible option, and kept on suggesting the venue of United States as his future academic option. This disdain for Canada and fondness for the education in the United States for a Canadian Citizen, does not appear to be of his independent volition and is obviously inspired by his father's views. From the personal interview with Arjun it did not seem that the two children were presently enjoying an amicable relationship. The son Ajrun did appear be totally in favor of his father and did not appear to have manifested warm feelings towards the respondent mother.
11. This Court's interview with the young child Bhareth revealed as follows:-
(a) The child Bhareth was under stress;
(b) The child was articulate and intelligent and seemed to be capable of evincing his intentions clearly. He clearly stated his total preference for staying with the mother even in Canada and did not want to stay with his father or his brother;
(c) He was also asked whether he will miss the company of Arjun, he replied in affirmative but he was clear in his view that while he would miss Arjun but he nevertheless wanted to be with his mother. He also stated that eventually Arjun would also be traveling abroad after his schooling is finished this year.
12. In my view the child Bhareth is aware and confident and while not mature enough to make major decisions in his life, is nevertheless intelligent and articulate enough to indicate his preferences without any doubt. Even if this Court was to direct the child to remain with the father, my perception is that Bhareth will not be happy. If the child Bhareth is not happy then his welfare would be adversely affected. Besides the child of 9 years would require his mother's company much more than that of his 18 years old brother or his father.
13. The learned counsel for the petitioner Mr. Tikku laid much stress on the fact that permitting the respondent mother to go out of India would mean losing jurisdiction over the respondent wife and the younger son Bhareth and that an order which permits the respondent mother to carry the child outside India would be contrary to Section 12 of the Guardian and Wards Act. It was also urged by Shri Tikku that once the child starts residing in Canada, the petitioner and indeed this Court would be helpless in enforcing the order adverse to the respondent qua the custody of their son Bhareth in case the final order goes against the respondent/mother.
14. The learned counsel for the petitioner Shri Tikku relied upon the following judgments
(a) In Paul Mohinder Gahun v. State of NCT of Delhi and Ors., 113 (2004) DLT 823, it was held as follows:-
"A girl child of tender age is bound to shape better in the care of her mother especially when it is not the case of the petitioner that the environment in which the respondent is living in India is not conducive to such upbringing or that the child will not have proper schooling necessary for any career that she may choose for herself. It is true that the father is financially better off than the mother with whom the child is presently living but then the superior financial position of the husband is no ground for change of custody. As observed by Their Lordships of the Supreme Court in Dhanwanti Joshi's case (supra), better financial position does not in itself provide a ground for disturbing the child from his/her mother's custody so long as the mother is giving good education or is capable of giving such education and so long as the child was doing well in her studies. The prospects of an immediate Canadian education which the petitioner father may be ready to provide for also cannot be a sufficient ground for shifting the custody of the child to the father ignoring the fact that the child has never stayed away from her mother and is used to her custody. The fact that the child is a Canadian citizen by birth is also of hardly any significance a this stage. That is because she can go to Canada in her own right in future just as in Dhanwanti Joshi's case, Their Lordships held that the child who was an American citizen could go to America in future whenever he decided to do so. The child's cont nuance with the mother does not in our view deprive her of any advantage much less irreparably so. That health care is better in Canada than what it is in India, or that the child has no citizenship rights in this country, are considerations that are bared on percepts which can vary from person to person. There may be areas in which Canadians have an advantage over those living in this country but to say that children born to parents of Indian origin will not or cannot grow well in this country because of lack of some fringe benefits which the citizens of Canada enjoy may not be correct. We need not enumerate the advantages which the child will have if she stays with her mother in India, but the least that one can say is that even if the child were to migrate to Canada at any stage, the experience of being brought up in this country will be an advantage more than a liability."
The above noted case is not applicable to the facts of the instant case as in the present case, it is not the question of living in Canada or India which is relevant but whether it will be in the interest of minor Bhareth to grow up under the care and protection of his mother in preference to the present arrangement.
(b) In Indira Khurana v. Prem Prakash, 60(1995) DLT 633, the learned Single Judge of this Court held as under:-
"10. .......... It goes without saying that when the grant of custody is concerned, ascertainment of wishes of the children, especially when they are at an age to make an intelligent preference is a relevant and germane consideration. In none of the cited cases, the question of visitation rights only was involved. In the cited cases, the Court was considering the grant of custody and while doing so, had also made provision for visitation rights. It is also significant that in these cases, visitation rights were granted to the spouse who did not have the custody. This is because there should be very strong reasons to deny visitation rights to any of the spouse. These could be cases say where the grant of visitation rights could be injurious to the mental and physical health of the children.
11. The Guardian Judge while exercising his judicious discretion in granting visitation rights can certain ascertain the wishes of the children by meeting them. In fact, it would be desirable to do so. However, omission to do so in case of visitation rights cannot be fatal especially when there is sufficient material on record available otherwise, supporting grant of visitation rights. This is so in the instant case. The memorandum of understanding had been entered into on the 6th day of December, 1993. The petitioner has not pointed out anything attributable to respondent after 6.12.1993, which would render grant of visitation rights to respondent injurious to the mental and physical health of the children. The petitioner in terms of memorandum as willing to share the vacation and give visitation rights to the respondent. Moreover the expression of wishes of the children is very often conditioned by the persuation of the party in whose exclusive custody the children have been. The Court, therefore, while ascertaining the mind of the children, has to be conscious of the fact that what the children say could be the reflection of the views of the estranged spouse and induced by him/her."
(c) In Shyam Sunder Trikha v. Sunita, 1997 IV AD (DELHI) 198, a learned Single Judge of this Court held as under:-
"........ The Court can only reiterate that the Guardian Judge, while ascertaining the mind of the child during a meeting has been conscious and cautious of the fact that what the child is saying could be reflection of the views of the estranged spouse and as induced by him/her."
The above judgments in the cases of Indira Khurana (supra) and Shyam Sunder Trikha (supra), in fact refer to the desirability of ascertaining the wishes of the children. I have also not discounted the possibility of the child being influenced by the parent he last stayed with. But even then in view of the overall circumstances of the case and taking into account the factors discussed hereinabove the impugned order has to be sustained except in relation to the enhancement of the amount of personal bind from Rs.2 lakhs to Rs.3 lakhs.
The counsel for the petitioner contends that Section 12 of the Guardians and Wards Act, 1890, does not in any manner authorises and/or deal with the situation of allowing the taking out of minor to foreign country on almost permanent or quasi permanent basis. Section 12(1) reads as follows:-
"12. Power to make interlocutory order for production of minor and interim protection of person and property.--(1) The Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper."
But, in my view, the power of the court to make 'order for temporary custody' of the person and property of the minor under Section 12 of the Guardian and Wards Act, 1890 includes the power to allow the child to be taken outside the territory of India, if the welfare of the child so demands.
15. The counsel for the respondent has sought to rely upon the following judgments to contend that the Court has jurisdiction to order the traveling out of the minor child with one of the parents and mere possibility of loosing jurisdiction, in the interest of child would not dissuade a Court from permitting the departure of the child with the determined parent. Reliance has been placed on the following judgments:-
(i) In Marggarate Maria Pulparampil Nee Feloman v. Dr. Chacho Pulparampil, AIR 1970 Ker 1, it was held:-
" If the Court as parens patriae comes to the conclusion that it is necessary in the paramount interests of the minor to entrust it to the custody and care of one of its parents who is residing outside the territory of India, it has full power to pass orders permitting the child to be removed out of India............"
(ii) In Eugenia Archetti Abdullah v. state of kerala and Anr., WP(Crl.) No. 61 of 2004, it was observed:
"nor are we impressed by the agrument that we will lose jurisdiction to entrust the children with the mother even if we come to the conclusion that it is in their best interest since it would involve the children being sent out of the jurisdiction of this Court...."
(iii) In Elizabeth Dinshaw v. Arvand M. Dinshaw, AIR 1987 SC 3, it was held:
"In our considered opinion it will be in the best of interest and welfare of the child that he should go back to the United States and continue his education there under the custody of guardianship of the mother......
We are also satisfied that the petitioner who is the mother is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every way to his proper upbringing.........
The child has not taken routine in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States."
(iv) In SURINDER KAUR v. HARBAX SINGH, AIR 1984 SC 1224, the Hon'ble Supreme Court held among other grounds the fact that (in para 10) that the boy is a British citizen having been born in England and holds a British passport."
16. The impugned judgment of the learned Additional District Judge, permitting the respondent to go abroad imposed the following conditions:-
"(a) The respondent/mother would disclose her residential as well as clinic address of toronto and also her telephone number;
(b) The respondent/mother would furnish the undertaking before this court to appear as and when called for appearance and would also furnish a bond of Rs.2 lacs in this respect;
(c) The respondent/mother would authorise some person in India to seek instructions on her behalf and to attend the present litigation on her behalf;
(d) The respondent/mother would furnish progress report of the child after every six months;
(e) The respondent/mother would file the Schedule of vacations/holidays of the school of the child;
(f) The respondent/mother would bring the minor child during holidays in June every year to India for meeting with the respondent at least 10-15 days. The cost of the child for coming from Canada to India in June every year would be borne by the petitioner.
The learned Additional District Judge imposed certain other following b conditions and also permitted the father's access to the child Bhareth:-
On the other hand, the request of the respondent (husband) for visitation is also genuine and it is in the interest of the minor that the child grows up having access to his natural father and also the elder brother. Considering the request, it is ordered that respondent (father) and the elder son may go to Canada for meeting the child with prior information of at least one week to the petitioner/mother. The meeting would take place at some place convenient to the parties and I leave it open to the parties to decide as per their convenience. The petitioner (mother) would not create any interference in the visitation of the child with the father."
17. In view of the law laid down by the above mentioned judgments and conditions imposed by the learned Guardian Judge this Court is empowered to entrust the custody of a child to a parent who resides outside its jurisdiction, if it is conducive to the welfare of the child. While there is no doubt that the authority of this Court ought not to be undermined by a recalcitrant parent flouting with impunity any order of this Court or a court subordinate to this Court and this Court should not take such violations lightly, nevertheless the fear expressed by the petitioner while seemingly possible does not on closer scrutiny appear to be such which would justify the interference of this Court with the impugned order.
18. While undoubtedly the love and company of both parents represents an ideal situation, but if the circumstances of a case and the welfare of the child so warrant the Court is left with an unenviable task of opting for the custody of one of the parents. In the present case, the plea of Shri Tikku, the learned counsel for the petitioner that the wife should stay in Delhi with the younger son and practice medicine is prima facie attractive but taking in account her professional preference coupled with the preference expressed by the child, I am of the view that the child's growth with the mother would be more beneficial to the child's welfare. This would also avoid the tensions generated between two battling parents. I am also conscious of the fact that the court should not rely entirely upon the preference of a 9 year old child. However, since I have interacted with all the four members of the family I am of the view that the welfare of the child could be better provided by the mother. I am also satisfied that the fears for Bhareth's safety in Canada after school hours expressed by Shri Tikku do not have any substance as a single parent child is not such a rare phenomenon, particularly in Canada. I have no doubt that the father of the child and the elder brother love Bhareth as much as mother does, but since the relations between the spouses are irretrievably soured this task of opting for one parent has to be performed by the Court.
19. In the present case, the petitioner husband is not short of resources and is indeed a Canadian Citizen. He cannot be compared with the position of a parent who on finding that the other parent with a child is flouting the order of Court in India, is unable to assert his/her rights abroad by lack of means both financial and otherwise. The petitioner husband on his own showing possesses sufficient funds. He has been a successful merchant banker in Canada and is well versed with the position of law there and in case of any violation of the eventual order of the Guardianship Court if it goes against the respondent wife, is in a far better position to assert his rights even in Canada as compared to other less fortunate parents. Therefore, in case the respondent violates any order of Courts in Delhi, the petitioner/husband is fully capable and well placed enough to travel to Canada to assert his rights. The respondent wife is not rootless in India and has her parents who have permanent residence here.
Indeed the married couple was staying for some time with the parents of the respondent wife. These roots in India are strong enough so as to dissuade the respondent from flouting the adverse order if any passed finally. The respondent also does not possess such means as would make her risk the possibility of forfeiture of a bond of Rs.2,00,000/-. However, notwithstanding all the above in the interest of justice I am of the view that the bond of Rs.2,00,000/- should be raised to Rs.3,00,000/- in the present case. The rest of the conditions imposed are sufficient to safeguard the welfare of the child and indeed the rights of the father and the elder brother to visit the respondent/child Bhareth or to obtain eventual custody. I am also of the view that in view of the embittered relationship between the two parents part of which has unfortunately trickled down to the children, the benefits of the company of the elder brother Arjun and the father, is far outweighed by the beneficial effect of the other's company and the avoidance of the tension and friction between the two parents which has been exhaustively pleaded and urged. Furthermore, on the elder brother Arjun's own showing, he has almost completed school and will soon be traveling out of India to study and in such a situation the benefits of the elder brother's company even if Bharath was in Delhi would be illusory and be for a very short term at best. There is also considerable age difference between the two children.
20. I am thus of the view that impugned order of the learned Additional District Judge ought to be upheld on the respondent's furnishing bond of Rs.3,00,000/-. Mr. Tikku vehemently contended that in a very short time even the final order in regard to custody ought to be have been passed and therefore there was no emergent need to permit the traveling of the child to Canada by virtue of an interim order. The plea of the petitioner that the final order could have been passed at an early date does not appear to be possible, taking into account the prolix pleadings and the manner and method in which this case has been argued at length by both the sides even in this Court.
21. Mr. Haksar states that all custody orders are interim in nature and analogy of a civil suit in respect of interlocutory/final orders cannot be applied ipso facto to cases of custody. In Jaiprakash Khadria v. Shyam Sunder Agarwalla and Anr., (2000) 6 SCC 598, it was held as under:
"Orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child."
22. I have already held that the embittered relations and the prolix pleadings and the length of time taken in the present case in this Court also, do not make it possible for the final order in the custody proceedings to be passed at an early date and to subject the child to suspense till the matter is finally determined would take away a vital period of life of Bhareth when he may grow up from being a small child to a teenager. Accordingly, even if there is an interim custody order, all custody order are in fact interim in nature as held by the Hon'ble Supreme Court in Jaiprakash Khadria's case (supra) and if circumstances and the welfare of the child so mandates ought to be upheld.
23. Accordingly, there is no merit in the petition. It is dismissed subject to the modification in the order of the learned Guardian Judge dated 10th November, 2004, enhancing the quantum of security bond from Rs.2 lakhs to Rs.3 lakhs. Since due to paucity of time the judgment is being pronounced in the vacations, the interim order passed by this Court on 25th November, 2004, shall cease to operate from 13th of July, 2005.