Karnataka High Court
Smt. Radha Alias Parimala vs N. Rangappa on 3 March, 2004
Equivalent citations: AIR2004KANT299, ILR2004KAR3212, 2004(3)KARLJ458, AIR 2004 KARNATAKA 299, 2004 AIR - KANT. H. C. R. 1431, (2004) ILR (KANT) (3) 3212, (2004) 2 CIVILCOURTC 377, (2004) MATLR 602, (2004) 3 RECCIVR 775, (2004) 23 INDLD 173, (2004) 4 CIVLJ 168, (2004) 2 HINDULR 416, (2004) 3 KANT LJ 458, (2004) 2 MARRILJ 552
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT S.R. Nayak, J.
1. In this appeal preferred by the mother under Section 47CC) of the Guardians and Wards Act, 1890 (for short, 'the Act'), the legality and correctness of the order dated 13th July, 2001 passed in G and WC No. 5 of 2000 on the file of the Court of the Principal Civil Judge, Senior Division and CJM, Shimoga (for short, 'the Court below'), allowing the petition filed by the respondent-father under Section 25 of the Act holding that the respondent is entitled to have the custody of the minor Shreyash, by name and directing the appellant to hand over the custody of the minor to the respondent on 31-7-2001, is called in question.
2. The facts of the case in brief may be noted first and they are as follows: The respondent who is the father of the minor filed G and WC No. 5 of 2000 under Section 25 of the Act alleging that he married the appellant on 29-1-1993 at Kengapura Village as per the customs prevailing in the community and from out of the wedlock the minor was born on 2-8-1993. Even before the marriage, the parties were closely related.
3. During the year 1999, the minor was studying in 2nd standard in Sri Ayyappa Higher Primary School in Shimoga. On 25-11-1999, the appellant left the matrimonial home without any justification and consent of the respondent and in his absence and without informing anyone else. Surprised by the sudden disappearance of the appellant from the matrimonial house, the respondent, the parents of the appellant and well-wishers of the respondent went in search of the appellant. They found the appellant in the company of her paramour one P. Ismail, by name, who is an Assistant Master at Honganur in Channapatna Taluk, living in adultery with him. The said P. Ismail was earlier a neighbour of the parents of the appellant at Kogalur Village. Under the circumstance, the respondent filed M.C. No. 14 of 2000 under Section 13(i) of the Hindu Marriage Act, 1955 for divorce. The appellant despite service of notice on her on 24-1-2000, did not appear and contest the case. In the circumstance, the Court granted decree of divorce on the basis of the evidence adduced by the respondent. However, after the disposal of M.C. No. 14 of 2000, the appellant has filed an application in that M.C. for setting aside the ex parte decree and that application is pending.
4. Even after 25-11-1999, the minor was in the custody of the respondent residing in Shimoga. The appellant filed a complaint alleging offences punishable under Sections 498A, 323, 504, 506(2) and 307 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The local police having registered that complaint as Crime No. 39 of 2000 arrested the respondent and he was in judicial custody for 20 days before he was released on bail. Taking advantage of that situation, the appellant took away the minor child on 21-9-2000 forcibly and without informing the members of the respondent-family. The respondent so alleging and contending that since the minor is aged 8 years, he being the natural guardian of the minor is entitled to custody of the minor; he wants to give good education to the minor; the minor is the only son; the appellant being immoral lady cannot be entrusted with the custody of the minor, filed G and WC No. 5 of 2000 before the Court below under Section 25 of the Act.
5. On service of notice, the appellant who was the respondent before the Court below, put in appearance and contested the case by filing a statement of objections. In the statement of objections, she denied all material allegations made by the respondent herein except the factum of marriage and birth of the minor on 2-8-1993 from out of the wedlock and the fact of the respondent obtaining a decree of divorce in M.C. No. 14 of 2000. But, it was alleged that that decree was obtained by playing fraud. However, she admitted that she lodged a complaint with local police alleging dowry harassment and other matrimonial offences against the respondent and the same was registered as Crime No, 39 of 2000 under Sections 498A, 323, 504, 506(2) and 307 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. In pursuance of the registration of the crime, it is admitted, the respondent was arrested and he was in judicial custody for 20 days between 21-9-2000 and 11-10-2000. The appellant has alleged that the respondent is not a proper person to whom custody of the minor can be entrusted and that he is seeking the custody of the minor with ulterior motive. It was also alleged that the respondent did not spend any money for maintenance of the minor for the past six months. The appellant also stated that her parents and brothers are financially sound and, therefore, she can give good education to the minor. The appellant has also stated that the minor is very much attached to her.
6. The Court below in the premise of the pleadings of the parties, framed the following points for decision making:
1. Whether the petitioner is entitled to the custody of the minor child, as sought?
2. What decree?
7. The respondent in support of his case examined himself as P.W. 1 and examined three more witnesses as P.Ws. 2 to 4 and produced 18 documents marked as Exs. P. 1 to P. 18. On behalf of the appellant, the appellant herself examined as R.W. 1 and examined another witness, Kyati, by name, as R.W. 2 and produced a document marked as Ex. R. 1. The Court below on appreciation of the evidence, oral and documentary, answered the first point in the affirmative and, consequently, granted the custody of the minor to the respondent-father by its judgment and order impugned in this appeal.
8. We have heard Sri G. Lakshmeesh Rao, learned Counsel for the appellant and Sri T.S. Amarkumar, learned Counsel for the respondent. Sri Lakshmeesh Rao, would contend that in passing the impugned order, the Court has lost sight of the fact that the welfare of the minor must be the paramount consideration for the Court while considering an application under Section 25 of the Act. According to the learned Counsel, the evidence on record would clearly show that the Welfare of the minor would be better served in the hands of the appellant-mother and not in the hands of the father. Learned Counsel would also contend that the appellant required financial resources to educate the minor in good schools and that is the reason why she has chosen to shift her residence from Kogalur Village to Shimoga and took a house on rent in Shimoga exclusively for the purpose of educating the minor in Sri Ayyappa Higher Primary School, considered to be one of the best schools in Shimoga. Learned Counsel would also point out that after obtaining the decree of divorce, the respondent has contracted second marriage and, therefore, it will be totally unsafe to entrust the custody of the minor to him. Learned Counsel would also point out that while deciding on the application under Section 25 of the Act, the Court below ought not to have taken into consideration the decree of divorce secured by the respondent on the ground of adultery, because, that decree was obtained by playing fraud ex parte and the same is sought to be reviewed by filing a miscellaneous application by the appellant. Sri Amarkumar, learned Counsel for the respondent, per contra, while supporting the impugned judgment and decree, would contend that having regard to the facts and circumstances of the case and all relevant considerations which should go into the decision making while considering an application under Section 25 of the Act, the Court below was fully justified and acted legally in entrusting the custody of the minor to the respondent-father by allowing the application filed by him under Section 25 of the Act.
9. Having heard the learned Counsels for the parties, a short point that arises for decision is whether entrustment of the custody of the minor to the respondent, in the facts and circumstances of the case and evidence on record, is just and legal.
10. It is a well-known principle of law governing the custody and guardianship of minors that it is the prime duty of the Court to do all acts and things necessary for the protection of minors for they cannot take care of themselves. The Court being an organ of the State should act as pater patriae for sustenance and protection of minors by doing of necessary acts and things. In other words, welfare of the minor must be the paramount consideration of the Court and not the wishes of the parties who seek custody or guardianship of the minors. The expression "welfare" in this context is to be understood in its widest sense and embraces not merely the material and physical well-being and happiness of the minor, but every circumstance and every factor bearing upon the moral/and religious welfare and the education and upbringing of the minor. In the matter of appointment or declaration of a guardian, the first and foremost starting point and the dominant consideration for the Court at every stage is the welfare of the minor. In all matters relating to the custody and upbringing of the minor as well as the administration and management of the minor's property, the primary and paramount consideration for the Court must be the welfare of the minor. The words 'welfare of the child' admits of no straight-jacket yard tick. It has many facets, such as financial, educational, physical, moral and religious welfare. The question where the welfare of the minor lies should be answered after weighing and balancing all factors germane to the decision making, such as relationships, claims and wishes of parents, risks, choices and all other relevant circumstances. The answer lies in the balancing of these factors and circumstances and determining what is best for the minor's total well-being.
11. A person applying for custody under Section 25 of the Act must be a guardian. Claim to custody is not a claim to property but is in the nature of trust for the benefit of the child. An order under Section 25 of the Act for return of the minor to the guardian cannot be passed unless it is established that he was taken away from the custody of the guardian. In order to enable an application to be maintained under Section 25 of the Act, such an application must be made by a guardian of the person of the minor who had the custody of the minor and such a minor has been removed from the custody of the guardian and in the opinion of the Court, it must be in the interest and welfare of the minor that the minor should be returned to the custody of the guardian.
12. In this case, the parties are Hindus. Section 6 of the Hindu Minority and Guardianship Act, 1956 deals with who are the natural guardians of a Hindu minor. It reads as follows:
"6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother provided that the custody of a minor who has riot completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)".
13. Under normal circumstances, the natural guardian is entitled to have the custody of the minor child. Hence, the father as the natural guardian is entitled to the custody of the minor children though, in the case of a girl under five years, the mother has the right to custody of the minor by a reason of the proviso. Subject to the exception made in the proviso to Clause (a) of Section 6, the father has the preferential right of guardianship and custody of the minor children. But, it should be remembered that even the preferential right of the father as a natural guardian should be subordinated to and even overridden by the sole consideration that the welfare of the minor is to be determinative, factor in all these matters of guardianship and custody, However, the controlling consideration governing the custody of the minor children is the welfare of the children and not the right of the parties. The father's right to the custody of the minor children is neither an absolute nor an indefeasible one. As pointed out supra by us, the welfare of the child should be the paramount consideration. The mother can also be given the custody of the minors, if their welfare or interest should require it, even if the father is otherwise fit to act as guardian. In entrusting the custody of a minor child to one of the parents, the Courts should take into account all relevant circumstances including social and religious environment of the family, the quality of immediate neighbourhood and locality in which a particular parent resides, financial position of the parties, education facilities for the minor concerned and all other circumstances and factors which are germane to the decision making. Further, in deciding the question of custody, the tests laid down in Section 17 of the Act, which section deals with the matters to be considered by the Court in appointing guardian, are equally applicable in considering the welfare of the minor under Section 25 of the Act. Section 17 enumerates certain tests which the Court generally takes into consideration while determining the question of the welfare of the minor. The principal considerations as suggested in that section are the age, sex and religion of the minor; the character and capacity of the proposed guardian to the minor; the nearness of the kin of the proposed guardian to his relationship with the minor. The Court is not so much concerned with the feelings of a particular parent as with the welfare of the minor.
14. Upon an application for custody of a minor, the Court should very carefully and anxiously weigh the various considerations and decide the question so as to promote the welfare of the minor and appoint a guardian best fitted to assure the welfare of the minor. The welfare of the minor children is not to be measured only in terms of money and physical comforts. The word "welfare" must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. The character and capacity of the proposed guardian should be considered. Thus in Smt. Mohini v. Virender Kumar, the custody of son aged 10 years was given to the mother. In C.S. Reddy v. Smt. Yamuna Reddy, 1975(1) Kar. L.J. 306, the custody of daughter aged 12 was given to the mother. In A.V. Venkatakrishnaiah and Anr. v. S.A. Sathyakumar, custody of the minor was given to the maternal grandparents. In S. Bikramajit Singh v. Smt. Iqbal Kaur, custody of five years old daughter was given to father in preference to mother's mother. In Vegesina Venkata Narasaiah v. Chintalapati Peddi Raju (DB) : (1971)1 Andh. Pra. L.J. 123, Smt. Radha Bai v. Surendra K. Mudaliar 1970(2) Mys. L.J. 377 : AIR 1971 Mys. 69, Sunil Kumar Chowdhary and Anr. v. Smt. Satirani Chowdhary and Anr. (DB), Smt. Chander Prabha v. Prem Nath Kapur (DB), Smt. Madhu Bala and Ors. v. Arun Khanna AIR 1987 Del. 81 and Kamalamma v. Laxminarayana Rao 1971(1) Mys. L.J. 307 (DB) : AIR 1971 Mys. 211 (DB), mother was not appointed as the guardian of the minor on the facts of the case. What emerges from the above decided cases is that the Court before appointing a guardian of a minor or entrusting the custody of a minor to a parent or others, it will take into account the totality of the circumstances of the case and assess the situation with regard to the guardianship and custody of the minor keeping in mind the welfare of the minor as the first and foremost consideration. In other words, the Court would normally entrust the custody of a minor to a person in whose hands, the Court thinks, the welfare of the minor will be served better in relative terms.
15. In the case of Hindus, the Court would normally appoint the father as a guardian of the minor and would not deprive him of custody of the minor if it is satisfied that having regard to the facts and circumstances of the case, the father should have the custody of the minor. However, in such case also, the dominant consideration, in appointing the guardian should be the welfare of the minor and if the Court finds that the entrustment of the custody of the minor to the father would not be in the welfare of the minor, then, the Court may not be justified in entrusting the custody of the minor to the father, though the father is the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956.
16. In the backdrop of the principles noticed above governing the appointment of guardian and entrusting the custody of minor to a parent or others, let us have a look at the facts of this case in order to decide whether the welfare of the minor child will be better served by entrusting his custody to the mother or to the father. On the date of institution of G and WC No. 5 of 2000, the child was more than 7 years old; the child was with the father upto 21-9-2000, the date on which he was arrested and kept in judicial custody in pursuance of the registration of Crime No. 39 of 2000; the father is employed as an Assistant in Oriental Insurance Company and has a regular income to support himself and the minor as well as the appellant. The respondent on the date of institution of G and WC No. 5 of 2000 was serving in Shimoga and subsequently he was transferred to Chitradurga and in both the places good academic institutions are available for educating the child properly. As against this, the appellant mother was admittedly a housewife as on the date of institution of G and WC No. 5 of 2000; she was residing with her parents in Kogalur Village in Channagiri Taluk; admittedly she has no independent source of income to support herself or to support the minor; she has read only upto PUC. When we weigh these admitted facts and balance plus and minus points, keeping in our mind the welfare of the minor as the paramount consideration, we are of the considered opinion that the welfare of the minor would be served better if we entrust the custody of the minor to the father. Although the learned Counsel appearing for the appellant made a feeble attempt before us that the parents of the appellant are financially sound and they have financial resources to provide residence for the appellant and the minor in Shimoga and to give good education to the minor in Shimoga, that submission of the Counsel is not acceptable to us, because, that plea remains to be a plea only without proof in this case, the parents of the appellant are not examined before the Court below, nor any documentary evidence is produced before the Court below to show the financial resources of the parents of the appellant to provide residence to the appellant and the minor in Shimoga for the purpose of educating the minor. Alternatively, it needs to be noticed that even assuming that the parents of the appellant have financial resources to provide residence in Shimoga for the appellant and the minor, that fact itself cannot be a valid justification for the Court to deny the right of custody of the minor to the respondent, particularly he being a natural guardian of the minor. Further, the claim now made by the appellant that the parents of the appellant are having financial resources to support her and the minor does not seem to be correct statement, because, it is pointed out that in the application filed by her for maintenance, she has stated that she has no independent income to support herself or to support the minor. Thus, it is quite clear that there are no weighty considerations to deny the father his preferential right to the custody of the minor. The father being a natural and lawful guardian of the minor, he has a legal right to control and direct the education and bringing up of the minor until he attains majority, and the Court will not interfere with him in the exercise of his paternal authority except where by his gross moral turpitude he forfeits his rights or where he has by his conduct abdicated his paternal authority or where he by his actions creates impediments on the path of the minor for his growth and development. Such a case is not made out in this case against the father.
17. Although learned Counsels for the parties, in the course of the arguments, would highlight the alleged adultery committed by the appellant and illegitimate intimacy with two women/bigamy committed by the respondent, we have not taken those allegations into account in the decision making, because, the veracity of the allegations can be gone into by the Court below in the pending proceedings in Miscellaneous No. 67 of 2000 and Misc. P. No. 48 of 2000, Suffice it to state that the decree of divorce obtained by the respondent on the ground of adultery on the part of the appellant is not yet aside. Having heard the learned Counsels for the parties in detail and having perused the materials and evidence on record carefully and appreciating the circumstances of the appellant as well as those of the respondent and bestowing our thought seriously, we think that the welfare of the minor would be better served by entrusting the custody of the minor to the father. We do not find any weighty or substantive ground to deny such natural right to him.
18. The evidence of P.W. 3 who is the elder sister of the respondent and that of P.W. 2 who is a neighbour of the respondent would clearly go to show that the appellant voluntarily left the matrimonial house and went away to Channarayapatna. The allegation is that the appellant was eloped by her paramour, P. Ismail on 25-11-1999, leaving the minor. Their evidence also proves the fact that the minor was with the respondent till the respondent was arrested and taken into judicial custody in pursuance of the registration of Crime No. 39 of 2000 and that the minor was taken away by the appellant when the respondent was in judicial custody without permission or consent of the respondent. Thus, the respondent has established all necessary conditions to allow the petition filed by him under Section 25 of the Act and to grant the relief envisaged in that section.
19. In conclusion, the appeal fails and it is accordingly dismissed, however, with no order as to costs.