Bombay High Court
Ashok Shamjibhai Dharod vs Mrs. Neeta Ashok Dharode & Anr. on 29 November, 2000
Equivalent citations: AIR2001BOM142, 2001(2)BOMCR502, II(2001)DMC48, 2001(2)MHLJ115, AIR 2001 BOMBAY 142, (2001) 2 DMC 48, (2001) 2 HINDULR 188, (2001) 2 MAH LJ 115, (2001) 2 MAHLR 332, (2001) 2 BOM CR 502, 2001 (2) BOM LR 508, 2001 BOM LR 2 508
Author: V.C. Daga
Bench: V.C. Daga
JUDGMENT V.C. Daga, J.
Heard the parties.
Rule returnable forthwith. Respondents waive service.
1.The present petition arises out of the interim order passed by the 3rd Family Court, Mumbai in M. J. Petition No. A-1853/1997. By the said order the petition moved by the father for removal of minor child from the custody of mother was rejected, maintaining the order of access to the child operating in favour of the petitioner-father. The Family Court's decision is based on the ground that the welfare of the child would be best served by his mother.
In order to test the legality of the impugned order, it is necessary to arrive at the crystallised legal position of law on the subject.
LAW ON THE SUBJECT
2. Law on the subject is almost settled. The paramount consideration governing custody of the child is the welfare of the child and not legal rights of the parties. In normal circumstances natural guardian is entitled to have custody of the minor child and it is father, who has first right to have the custody of the child. However, father's right to have the custody of the child is neither absolute nor indefeasible. The question regarding the custody of a minor child cannot be decided on the basis of legal rights of the parties. The custody of the child has to be decided on the sole and predominant criterion of what would be best and in the interest of the minor child. The mother can be given custody of the minor if the child's welfare or interest requires it, even if father may be fit to act as a guardian.
The issue involving the grant of custody always needs to be decided consistently with the wishes of minor provided it is not a product of tutoring or undue influence.
FACTS IN BRIEF :
3. The following are the facts :
The petition for restitution of conjugal rights was filed by the respondent-wife on 10.11.1997 along with the application for grant of maintenance pendents lite. As a counterblast, the petitioner-husband moved an application claiming custody of the minor child called Harsh from the respondent-wife. The age of the minor child, the victim of a broken marriage is about 8 years. He is taking his primary education. He is in the custody of the mother.
RIVAL CONTENTIONS :
4. The contentions of the parties are as under :
The petitioner-husband urged that the respondent-wife is engaged in the profession of taking tuitions. According to him, she is required to leave her home for taking tuitions at 7.30 a.m. She returns at about 2 p.m. She is again required to be away from her home, with the result she is not in a position to look after the minor child Harsh. As against this, he submitted that considering his working hours; which are in between 9 a.m. to 12 Noon and 4 p.m. to 10p.m., he would be in a better position to look after the said minor child. He further submitted that In his absence, his mother and his brother's wife can look after the child. Apart from this, he further urged that his family has extensive accommodation as against the accommodation available with the respondent-wife. In his submission sufficient space would provide better facility and environment to the child for rest and study. He further submitted that good nursery schools are available in the vicinity of his house. In the light of this, he also urged that the child can be shifted to a nearby Nursery School so as to save him from hazards of heavy traffic of the city.
5. In order to meet the aforesaid submissions, the respondent-wife in reply filed an affidavit stating therein that she was taking tuition prior to April, 2000. However, presently, she is not engaged In taking tuition classes. Apart from this, she further stated that petitioner-father is engaged in the business of transport and will hardly be in a position to devote any time to look after the child. She further stated that in her absence her mother looks after the child. On her behalf It was urged that considering the tender age of the child, she would be in a better position to look after the child, so far as his needs are concerned. Apart from this, learned Counsel for the respondent further contended that the Family Court has exercised discretion in favour of the respondent (mother of the child) on the sound principles of law and therefore, the impugned order should not be interfered with.
6. After having heard the parties, it is clear that the mother of the child is a teacher taking tuitions, as against this the petitioner father of the child is engaged in the business of transport. He has to be away from home right from 9 a.m. to 10 p.m. barring a small period of lunch break of about 1 hour.
In the light of the aforesaid rival contentions and facts and circumstances of the case, following points arise for my consideration :-
POINTS FOR CONSIDERATION (A) In whose custody interest of minor child Harsh would be better served?
(B) Who can devote more time to look after the minor child?
FINDINGS
7. According to medical research and investigation it has been proved that emotions of a pregnant woman affect the baby inside. This shows that learning process starts from the womb. A growing infant feels safe and happy In the hands of a mother. This feeling of security and happiness forms the basis on which the personality of the child develops. The role of mother is of greater importance than that of a father during the earlier years of a child. Therefore, it Is for the mother to groom children. For this, mothers should be educated. Mothers can meet, exchange views, analyse problems posed by children and help them.
8. The basic education plays an important role in the formative age of the child. One must understand that education Is not literacy alone, literacy is only a part of it. Education is much more. It is the physical or biological, psychological or mental and the spiritual or ethical growth of a child. Only when these three function smoothly, one can say there is education. When viewed from this stand point, one can reach to the conclusion that In ilie formative years first teacher is the mother. Clean habits can easily be taught by the mother, ,to the extent it becomes a habit for the child. Interactions with the mother pays rich dividends.
9. In the case in hand, mother is already looking after the minor child Harsh. No attempts were made by the petitioner, the father of the child to pay maintenance to the child till application claiming maintenance for him was moved by the respondent, the mother of the child. Conduct of the father did not Indicate that he was Interested in the welfare of the child but now the anxiety of the father (Petitioner) seems to be to seek custody of the child with a view to avoid payment of maintenance for the child.
10. The learned Counsel appearing for the petitioner made a complaint that the Marriage Counsellor took interview of the child Harsh behind the back of the petitioner. In her submission, the learned Judge ought to have interviewed the child personally. Consequently, she contended that the impugned order is vitiated being in breach of principles of natural justice. In these premises In her submission, the learned Judge of the Family Court ought to have discarded the report of the Counsellor and should have ordered fresh Interview that too by the Judge herself.
11. The above submissions made are devoid of any substance. It Is needless to mention that a provision is made under the rules framed under Family Court's Act to seek assistance from the Marriage Counsellor. The Counsellors are trained persons. If deemed necessary, the Presiding Officer can seek assistance of the Counsellor. The Counsellor is entitled to interview relations, friends and the acquittances of the parties or any of them including the minor child, If it is a case of custody of the' child. The Court can request the Counsellor to submit report. On the report of the Counsellor, the Court can pass necessary orders after notice to the parties relating to the custody of the child. The parties to the proceedings are entitled to a notice before order is passed. The presence of the parties at the time of interview is not necessary. In the instancy case, the report submitted by the Counsellor is a balanced report. Neither the presence of the mother nor the absence of the father was influenced or affected it. The view taken by the Family Court on the report of the Counsellor will show that the same has not been construed against the father (petitioner). The Family Court has taken balanced view of the report. Thus the absence of the petitioner has not caused any prejudice to him. Merely because the child was not interviewed by the Presiding Officer herself cannot give any mileage to the petitioner-husband in this matter.
12. Apart from the merits of rival claims, one must bear in mind that whatever may be disputes between the parties, the Court has to consider in the present proceedings for grant of custody; what is in the best interest of the minor child? The minor child Master Harsh Is in the exclusive custody of mother for last 3 years. In this background, I do not regard effluence of the petitioner's brother or mother to be a circumstance of such overwhelming importance so as to tilt the balance in favour of the father on the question of what is truly for welfare of the minor. At any rate. I do not agree that it will not be in the welfare of the minor child, if he lives with his mother. In my opinion, it would not be in the interest of minor to move him away from the mother's custody at this stage. Thus, taking overall view of the matter, considering welfare for the child, in the peculiar facts of the present case, the Trial Court rightly taken into account all the relevant circumstances in para 6 of the impugned order so as to reach to the proper conclusion that the mother would be better custodian of the minor child. It will be In the Interest of minor to allow him to continue living with his mother considering her constant company with the child, and availability of educational environment in her custody.
13. Having said so, this Court cannot resist from mentioning that when there is a fight between the parents, the most affected persons are the children. Children resent fights. This resentment may slowly grow deeper into the child's psyche. When he grows Into an adult, either he becomes a violent person hating the world or he withdraws into a shell avoiding everybody. In either case, the child is deprived of a normal life. Considering psychological or mental impact on the child, the parties to this petition should try to resolve their differences and deficiencies in the interest and welfare of the minor child Harsh. It is well said that :
"The art of life lies in a constant readjustments".
14. Turning to the second limb of the submission, assuming that the second view in the facts and circumstances of the case is possible, then a question would be: Can this Court act as a Court of Appeal, while examining the impugned order of the Family Court, in exercise of writ jurisdiction under Article 227? Let me have a look to the scope of supervisory writ jurisdiction of this Court under Article 227 of the Constitution of India; so as to find out, to what extent this Court can interfere with the discretion exercised by the Family Court. The power of the High Court under Article 227 of the Constitution is restricted to interference in the cases showing grave dereliction of duties or flagrant violation of law and is to be exercised sparingly In cases where grave injustice would be done unless High Court interferes. It cannot be used as appellate or revisional power. While interfering with the discretion exercised by the lower Court, the higher Court, especially the Writ Court, is expected to be very slow. While dealing with the matter raised before it, the Writ Court would not be Justified in interfering with exercise of discretion solely on the ground that if it had considered the matter at the trial stage, might have come to a contrary conclusion. If conclusions drawn by the Trial Court are reasonable and in judicial manner the fact that Writ Court would have taken different view at the trial stage, may not justify interference with the orders of the Courts below.
15. In my view, the view taken by the Court below in the impugned order, is one of the possible views and the discretion exercised by it is reasonable and the same has been exercised after taking into account all the relevant facts and circumstances brought on record. Consequently, the discretion exercised by the Family Court needs no interference at the hands of this Court, especially, in writ jurisdiction under Article 227 of the Constitution of India.
In the circumstances, for the reasons stated hereinabove, petition is dismissed. Rule is discharged with no order as to costs.