Allahabad High Court
Ram Naik Misra And Another vs Km. Gauri And Others on 27 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2075, (2020) 139 ALL LR 29
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 3
Case :- FIRST APPEAL No. - 53 of 2018
Appellant :- Ram Naik Misra And Another
Respondent :- Km. Gauri And Others
Counsel for Appellant :- Prabhat Kumar
Counsel for Respondent :- Ramakar Shukla
AND
Case :- FIRST APPEAL No. - 55 of 2018
Appellant :- Ram Shanker Misra
Respondent :- Satish Chandra Misra
Counsel for Appellant :- Prabhat Kumar
Counsel for Respondent :- Ramakar Shukla
Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
In compliance of earlier order of this Court, appellant Sri Ram Shanker Misra, respondent Sri Satish Chandra Misra, minor children namely Ms. Gauri and Master Prakhar, are present before this Court.
Vide judgment and order dated 11.04.2018, the Principal Judge, Family Court, Sultanpur, decided two cases i.e. Civil Misc. Case No.72 of 2010 (Ram Naik Misra And Another Vs. Km. Gauri And Others) and Civil Misc. Case No.68 of 2009 (Satish Chandra Misra Vs. Ram Shanker Misra).
In both the above noted appeals the judgment and order dated 11.04.2018 has been challenged and as such both are being heard and decided by this judgment.
Heard, Sri Prabhat Kumar, learned Counsel for the appellant and Sri Ramakar Shukla, learned Counsel for the respondent.
Facts in brief of the present case, as per record, are that marriage between appellant no.2/Ram Shanker Misra and Moni Misra was solemnized in the year 2002 and out of the wedlock of appellant no.2 and Moni Misra , two children were born namely Ms. Gauri Misra and Mr. Prakhar Misra. Matrimonial relation between the appellant no.2/Ram Shanker Misra and Moni Misra has become strained and on 02.04.2007 Moni Misra tried to commit suicide and died on 09.04.2007 at K.G.M.C. Lucknow. Thereafter, father of Moni Misra i.e. Sri Satish Chandra Misra took the minor children in his custody. On 10.04.2007 Sri Satish Chandra Misra, lodged an F.I.R. under Sections 304B/498A and 3/4 Dowry Prohibition Act and on 17.5.2007 filed an application under Section 125 Cr.P.C. for maintenance of children. The appellant no.2/Ram Shanker Misra was taken into custody in relation to the FIR lodged by Sri Satish Chandra Misra and on 09.06.2011, the court below has acquitted the appellant Ram Shanker Misra. During the pendency of Criminal trial against the appellant(s), Sri Satish Chandra Misra (ukuk), maternal grandfather, filed a Civil Misc. Case No. 68 of 2009 under Guardian and Wards Act for appointing the guardian of minor children. The appellant nos. 1/Sri Ram Naik Misra(nknk) paternal grandfather, and appellant no.2, father of minor(s) Kr. Gauri and Master Prakhar, also filed a Civil Misc. Case No. 72 of 2010 for appointing the guardian of minor children namely Ms. Gauri Misra and Master Prakhar Misra. Thereafter, Principal Judge Family Court, Sultanpur clubbed both the cases together and decided by its order dated 11.04.2018, whereby allowing the Civil Misc. Case No. 68 of 2009 filed by Sri Satish Chandra Misra and directed that custody of minor children namely Ms. Gauri Misra and Master Prakhar Misra, be given to their maternal grand father (ukuk) Sri Satish Chandra Misra and dismissed the Civil Misc. Case No. 72 of 2010 filed by appellants.
The judgment and order dated 11.04.2018 passed by Principal Judge, Family Court, Sultanpur is in issue.
Sri Prabhat Kumar, learned Counsel for the appellants challenging the judgment and order dated 11.04.2018 submitted that in the present case, father being the natural guardian of the minor children namely Ms. Gauri Misra and Master Prakhar Misra, custody shall be given to him, however, ignoring the said fact, the court below has dismissed the case of appellants. He further submitted that since 2007 both the children are living with their maternal grand father (ukuk) Sri Satish Chandra Misra and both the children have been influenced by maternal grand father (ukuk) Sri Satish Chandra Misra and this fact has not been considered by the court below and in an arbitrary and illegal manner the court below has passed the order dated 11.04.2018 which is liable to be set aside. In support of his submission he has placed reliance on the judgment of Hon'ble Apex Court in the case of Tejaswini Gaud and Others Versus Shekhar Jagdish Prasad Tewari and Others in Criminal Appeal No. 838 of 2019. The relevant paragraph nos. 34 to 36 are quoted below:-
"34. This Court in Surinder Kaur Sandhu case [Surinder Kaur Sandhu v.Harbax Singh Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464] was concerned with the custody of a child who was British citizen by birth whose parents had been settled in England after their marriage. The child was removed by the husband from the house and was brought to India. The wife obtained a judicial order from the UK court whereby the husband was directed to hand over the custody of the child to her. The said order was later confirmed by the court of England and thereafter the wife came to India and filed a writ petition in the High Court of Punjab and Haryana praying for custody and production of the child which came to be dismissed against which the wife appealed to this Court. This Court keeping in view the "welfare of the child", "comity of courts" and "jurisdiction of the State which has most intimate contact with the issues arising in the case" held thus: (Surinder Kaur Sandhu case [Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464] , SCC pp. 702-03, para 10) "10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Co. v. State of Washington [International Shoe Co. v. State of Washington, 1945 SCC OnLine US SC 158 : 90 L Ed 95 : 326 US 310 (1945)] , which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
35. In Elizabeth Dinshaw case [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , this Court held that it is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing and was guided by the factors such as the longer time spent by the child in the US in which the child was born and became US citizen and also the fact that the child has not taken roots in India and was still not accustomed and acclimatised to the conditions and environment obtaining in the place of his origin in the United States of America. This Court took note of the fact that the child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune.
36. In V. Ravi Chandran (2) case [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] , this Court was concerned with the custody of the child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home. This Court took note of the English decisions, namely, L. (Minors) (Wardship: Jurisdiction), In re [L. (Minors) (Wardship: Jurisdiction), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and McKee v. McKee[McKee v. McKee, 1951 AC 352] and also noticed the decision of this Court inElizabeth Dinshaw case [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] and Dhanwanti Joshi v. Madhav Unde[Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] keeping into consideration the fact that the child was left with his mother in India for nearly twelve years, this Court held that it would not exercise its jurisdiction summarily to return the child to the US on the ground that his removal from US in 1984 was contrary to the orders of the US courts. The relevant portion is as under: [V. Ravi Chandran (2) case [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] , SCC pp. 195-96, paras 29-30] "29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee [McKeev. McKee, 1951 AC 352] that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L. (Minors) (Wardship: Jurisdiction), In re [L. (Minors) (Wardship: Jurisdiction), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] . Similar view taken by the Court of Appeal in H. (Infants), In re [H. (Infants), In re, (1966) 1 WLR 381 (CA)] has been approved by this Court in Elizabeth Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] ."
Learned Counsel for the appellant has also placed reliance on the judgment reported in (2011) 6 SCC 479 (Ruchi Majoo Versus Sanjeev Majoo). The relevant paragraph nos. 72 to 77 are quoted below:-
"72. For a boy so young in years, these and other expressions suggesting a deep-rooted dislike for the father could arise only because of a constant hammering of negative feeling in him against his father. This approach and attitude on the part of the appellant or her parents can hardly be appreciated. What the appellant ought to appreciate is that feeding the minor with such dislike and despire (sic) for his father does not serve his interest or his growth as a normal child.
73. It is important that the minor has his father's care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view important for the child's healthy growth that we grant to the father visitation rights; that will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Since the respondent is living in another continent such contact cannot be for obvious reasons as frequent as it may have been if they were in the same city. But the forbidding distance that separates the two would get reduced thanks to the modern technology in telecommunications.
74. The appellant has been according to the respondent persistently preventing even telephonic contact between the father and the son. May be the son has been so poisoned against him that he does not evince any interest in the father. Be that as it may telephonic contact shall not be prevented by the appellant for any reason whatsoever and shall be encouraged at all reasonable time. Videoconferencing may also be possible between the two which too shall not only be permitted but encouraged by the appellant.
75. Besides, the father shall be free to visit the minor in India at any time of the year and meet him for two hours on a daily basis, unhindered by any impediment from the mother or her parents or anyone else for that matter. The place where the meeting can take place shall be indicated by the trial court after verifying the convenience of both the parties in this regard. The trial court shall pass necessary orders in this regard without delay and without permitting any dilatory tactics in the matter.
76. For the vacations in summer, spring and winter the respondent shall be allowed to take the minor with him for night stay for a period of one week initially and for longer periods in later years, subject to the respondent getting the itinerary in this regard approved from the Guardians and Wards Court. The respondent shall also be free to take the minor out of Delhi subject to the same condition. The respondent shall for that purpose be given the temporary custody of the minor in presence of the trial court, on any working day on the application of the respondent. Return of the minor to the appellant shall also be accordingly before the trial court on a date to be fixed by the court for that purpose.
77. The above directions are subject to the condition that the respondent does not remove the child from the jurisdiction of this Court pending final disposal of the application for grant of custody by the Guardians and Wards Court, Delhi. We make it clear that within the broad parameters of the directions regarding visitation rights of the respondent, the parties shall be free to seek further directions from the court seized of the guardianship proceedings; to take care of any difficulties that may arise in the actual implementation of this order."
On the basis of above referred judgments, Sri Prabhat Kumar, learned Counsel for the appellant submitted that father Sri Ram Shanker Misra, is entitled to take custody of his minor children and the judgment and order dated 11.04.2018, under appeal, is liable to be set-aside.
In rebuttal, Sri Ramakar Shukla, learned Counsel for the respondent, supporting the judgment and order dated 11.04.2018 passed Principal Judge, Family Court, Sultanpur, submitted that judgment and order, under appeal, is legal has been and passed in accordance with law. He further submitted that mother of the minor children committed suicide in the year 2007 i.e. on 02.04.2007 and died on 09.04.2007. Demand of dowry by the appellants was the cause of committing suicide. Since 2007 both the children are living with Sri Satish Chandra Misra (ukuk). On 10.04.2007 Sri Satish Chandra Misra, lodged an F.I.R. under Sections 304B/498A and 3/4 Dowry Prohibition Act against the appellants. Maternal grand father of the children Sri Satish Chandra Misra (ukuk) is giving proper care and eduction to the children. Learned Counsel for the respondent further submitted that against the acquittal order of appellants, an appeal bearing Criminal Appeal No. 1351 of 2011, has been filed, which is pending before this Court. Learned Counsel for the respondent also submitted that the father of the children Ram Shanker Misra has remarried and thereafter litigation between him and his second wife is pending under consideration before the competent court. In such circumstances if the custody of the minor children has been given to their father, the future of children would suffer/hamper and therefore, the appeals under consideration are liable to be dismissed.
In rebuttal, Sri Prabhat Kumar, learned Counsel for the appellant submitted that remarriage of the appellant cannot be a ground for denying the custody of minor children. In support of his submission he has placed reliance on the judgment reported in (2006) 13 SCC 555 (Lekha Versus P.Anil Kumar). The relevant paragraph nos. 19 to 23 are quoted below:-
"19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi [AIR 1950 Mad 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
20. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one's own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.
21. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the child's welfare and interest. The general view that the courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu law, the father is the natural guardian of a minor after the age of six years, the court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the child's needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the child's overall development.
22. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mother's second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same.
23. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the child's upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly, we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant mother shall hand over the child to the respondent father during every mid-summer vacation for about a month without adversely affecting the child's education. The appellant should not also prevent the respondent father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent father to the child."
We have considered the submissions of learned Counsel for the parties and perused the records. We find that in the case of Tejaswini Gaud (Supra), the Hon'ble Apex Court has held as under:-
"24. In Sarita Sharma [Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 : 2000 SCC (Cri) 568] , the tussle over the custody of two minor children was between their separated mother and father. The Family Court of USA while passing the decree of divorce gave custody rights to the father. When the mother flew to India with the children, the father approached the High Court by filing a habeas corpus petition. The High Court directed the mother to hand over the custody to the father. The Supreme Court in appeal observed that the High Court should instead of allowing the habeas corpus petition should have directed the parties to initiate appropriate proceedings wherein a thorough enquiry into the interest of children could be made.
25. In the recent decision in Lahari Sakhamuri [Lahari Sakhamuri v.Sobhan Kodali, (2019) 7 SCC 311 : (2019) 5 Scale 97] , this Court referred to all the judgments regarding the custody of the minor children when the parents are non-residents (NRI). We have referred to the above judgments relating to custody of the child removed from foreign country and brought to India for the sake of completion and to point out that there is a significant difference insofar the children removed from foreign countries and brought into India.
Welfare of the minor child is the paramount consideration
26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.
27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil Ratan Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413] , it was held as under: (SCC pp. 427-28, paras 49-52) "49. In Goverdhan Lal v. Gajendra Kumar [Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 : AIR 2002 Raj 148] , the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram [M.K. Hari Govindan v. A.R. Rajaram, 2003 SCC OnLine Mad 48 : AIR 2003 Mad 315] , the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to "human touch". The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.
51. In Kamla Devi v. State of H.P. [Kamla Devi v. State of H.P., 1986 SCC OnLine HP 10 : AIR 1987 HP 34] the Court observed: (SCC OnLine HP para 13) ''13. ... the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.'
52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solelyby interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."
28. Reliance was placed upon Gaurav Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1] , where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51) "32. In McGrath (Infants), In re [McGrath (Infants), In re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed: (Ch p. 148) ''... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word "welfare" must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.'
50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673] , 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 have also to be noted. They are equal if not more important than the others.
51. The word "welfare" used in Section 13 of the Act has to be construed literally and 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. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
29. Contending that however legitimate the claims of the parties are, they are subject to the interest and welfare of the child, in Rosy Jacob [Rosy Jacob v.Jacob A. Chakramakkal, (1973) 1 SCC 840] , this Court has observed that: (SCC pp. 847 & 855, paras 7 & 15) "7. ... the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors.
15. ... The children are not mere chattels: nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred [Jacob A. Chakramakkal v. Rosy J. Chakramakkal, 1972 SCC OnLine Mad 90 : (1972) 85 LW 844] in reversing him on grounds which we are unable to appreciate."
30. The learned counsel for the appellants has placed reliance upon G. Eva Mary Elezabath [G. Eva Mary Elezabath v. Jayaraj, 2005 SCC OnLine Mad 472 : AIR 2005 Mad 452] where the custody of the minor child aged one month who had been abandoned by father in church premises immediately on death of his wife was in question. The custody of the child was accordingly handed over to the petitioner thereon who took care of the child for two and half years by the Pastor of the Church. The father snatched the child after two and a half years from the custody of the petitioner. The father of the child who has abandoned the child though a natural guardian therefore was declined the custody."
In order to decide the present controversy, we feel it appropriate that the willingness of the children, who are minor, should also be considered and on a query being made by this Court the minor Ms. Gauri Misra, aged about 15 years, stated before us that at present she is studying in Class XI in Gopal Public Senior Secondary School in Science stream and she want to become a Doctor and she has secured 86% marks in High School Examination. We further asked to her that whether she want to live with her father or with her maternal grand father Sri Satish Chandra Misra. In response, she said that she want to live with her maternal grand father Sri Satish Chandra Misra, who has given proper care and education and she does not want to live with her father Ram Shanker Misra. We also put a query to the second minor child Master Prakhar Misra, aged about 13 years, that whether he wants to live with his father or maternal grand father Sri Satish Chandra Misra and in response Master Prakhar Misra, told that he is studying in Class VII in Raghukul Academy English Medium, Lambhua, Sultanpur and he is fond of playing cricket and he wants to live with his maternal grand father Sri Satish Chandra Misra, who has given proper care and education. Both the children also categorically stated before us that the "Nana" is taking all sort of care.
The admitted facts of the case are that marriage between appellant Ram Shanker Misra and Moni Misra was solemnized in the year 2002 and out of the wedlock of appellant and Moni Misra , two children were born namely Ms. Gauri Misra and Master Prakhar Misra. Matrimonial relation between the appellant no.2/Ram Shanker Misra and Moni Misra has become strained and on 02.04.2007 Moni Misra tried to commit suicide and died at K.G.M.C. Lucknow on 09.04.2007. Since the date of death of Moni Misra, Km.. Gauri Misra and Master Prakhar Misra are under the custody of their maternal grandfather (ukuk) Sri Satish Chandra Misra. On 10.04.2007 Sri Satish Chandra Misra, lodged an F.I.R. under Sections 304B/498A and 3/4 Dowry Prohibition Act. Thereafter, the court below has acquitted the appellant no.2/Ram Shanker Misra and thereafter, Sri Satish Chandra Misra filed a Criminal Appeal against the said acquittal order, which is pending consideration before this Court. It is also not disputed that father of minor children has got remarried and after marriage a litigation between appellant no.2/Ram Shanker Misra and his second wife, is also pending consideration before the court below. The children, who are present before this Court and are mature enough to give their opinion, categorically stated that they do not want to live with their father and "Nana" is taking all sort of care.
It is not in dispute that the children, who are presently living with their maternal grand father (ukuk) since the year 2007 are getting good education and are in proper care.
In view of the facts of the case, the point for consideration is that "whether the Court below is justified in rejecting the claim of custody of minors of appellants vide judgment under appeal dated 11.04.2018."
It would be appropriate if we examine some of the statutes dealing with the situation.
The Guardians Act consolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines "minor" as "a person who has not attained the age of majority". "Guardian" means "a person having the care of the person of a minor or of his property, or of both his person and property". "Ward" is defined as "a minor for whose person or property, or both, there is a guardian". Chapter II (Sections 5 to 19 of the Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with "power of the court to make order as to guardianship".
Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of court. Section 17 is another material provision and may be reproduced:
"17. Matters to be considered by the court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.
(5) The court shall not appoint or declare any person to be a guardian against his will."
Section 19 prohibits the court from appointing guardians in certain cases. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians.
The Hindu Minority and Guardianship Act, 1956 is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as "a person who has not completed the age of eighteen years". "Guardian" means "a person having the care of the person of a minor or of his property or of both his person and property", and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of the 1890 Act.
Section 6 enacts as to who can be said to be a natural guardian. It reads thus:
"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 not 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 a 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).
Explanation.--In this section, the expressions ''father' and ''mother' do not include a stepfather and a stepmother."
Section 8 enumerates powers of natural guardian. Section 13 is an extremely important provision and deals with welfare of a minor. The same may be quoted in extenso:
"13. Welfare of minor to be paramount consideration.--(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force.
In deciding a difficult and complex question as to the custody of a minor child, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.
While considering the provisions of the G & W Act, the Hon'ble Supreme Court in the case of Jitender Arora v. Sukriti Arora reported in (2017) 3 SCC 726 held at paragraphs 15 and 17 as under:
15. We also had interaction with Vaishali in the chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocally expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to UK. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her. She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and understands the long-term effects of the decision which she has taken. We also find that she has been brought up in a conducive atmosphere. It, thus, becomes apparent that in the instant case, we are dealing with the custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, the respondent has not been able to win over the confidence of Vaishali. We, therefore, feel that her welfare lies in the continued company of her father which appears to be in her best interest.
17. On the facts of the present case, we are convinced that custody of the child needs to be with the father. She is already 15 years of age and within 3years, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court. No costs.
The Hon'ble Supreme Court while dealing with the custody of minor child aged about nine years in the case of Nil Ratan Kundu v. Abhijit Kundu reported in(2008) 9 SCC 413 held at paragraphs 52 and 72 as under:
52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and fa vourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.
72. We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grandparents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father, the respondent herein."
While considering the provisions of Sections 7 and 17 of the G & W Act, the Hon'ble Supreme Court in the case of Mausami Moitra Ganguli v. Jayant Gangulireported in (2008) 7 SCC 673 held at paragraphs 12 and 26 as under:
12. Before hearing the case, we interviewed Satyajeet in chambers and found that he was quite intelligent and was able to understand the facts and circumstances in which he was placed. He could comprehend matters and visualise his own well-being. He seemed to have no complaint against his father. He explicitly stated before us that he was not inclined to go with his mother and would like to stay with his father and continue his studies at Allahabad where he has quite a few friends.
26. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that the child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court, as noted above, also do not require any modification. We, therefore, affirm the order and the aforeextracted directions given by the High Court. It will, however, be open to the parties to move this Court for modification of this order or for seeking any direction regarding the custody and well-being of the child, if there is any change in the circumstances.
Hon'ble Apex Court in the case of Nutan Gautam Vs. Prakash Guatam (2009) 4 SCC page 734 in regard to consideration for appointment of guardian held that the paramount consideration is welfare, interest and desire of the minor children.
In the present case, as stated hereinabove, the minors, Km. Gauri Misra, who is 15 years old and Sri Prakhar Misra, who is 13 years old, have categorically stated before us that they want to live with their Maternal Grand father i.e. Sri Satish Chandra Misra-respondent, who is taking care of the minor children and providing proper education, and they specifically stated that they do not want to live with their father i.e. Sri Ram Shanker Misra-appellant no.2.
As per settled position of law, father is the natural guardian of the minor children and therefore he has a preferential right of custody of the minor, but in the matter of the custody of minor children Court has to consider the welfare of the child and not the legal right of particular party and the Court should consider the case of custody of minor with humanitarian touch and while deciding the said issue in respect of custody of minor children, the Court is also required to consider the wishes of minor children.
The appellant no.2/father is the natural guardian of the minor children, but as per the facts and circumstances of the present case and as stated herein above and the finding which has been given by the Trial Court while passing the impugned judgment, we are of the considered opinion that the welfare of the child for the custody of guardianship, is to be given preference and from the record it also transpires that the appellants have not pleaded nor disputed that the minor children Km. Gauri Misra and Master Prakhar Misra are not getting proper education and other facilities. It is also proved from the record as well as the statement given by the minor children before us that they are getting proper education and other facilities, which itself reflects from the fact stated before us by Km. Gauri Misra that she has passed her High School Examination with 86% marks and Sri Prakhar Misra also getting good education at Sultanpur.
Taking into consideration the settled legal proposition and facts of the case as well as the statement given by the children before this Court, who are mature enough to express their opinion/preference on their wish to stay with "Nana" or "Father", we are of the opinion that the judgment relied upon by the learned counsel for the appellants Sri Prabhat Kumar i.e Tejaswini Gaud (supra), Ruchi Majoo (supra) and Lekha (supra) would not apply in facts of the case.
For the foregoing reasons, we do not find any infirmity or illegality in the impugned judgment and order dated 11.04.2018 passed by Principal Judge, Family Court, Sultanpur by which custody/guardianship of the minor children Km. Gauri Misra and Mr. Prakhar Misra has been given to the Maternal Grand father-respondent, Sri Satish Chandra Misra.
However, in view of the law laid down by the apex court, the father being a natural guardian should be given the visitation rights, which has not given by the court below, we partly allow the appeal providing visitation rights to the father of the minor children-Sri Rama Shanker Misra, and accordingly he has right of visiting his children namely Km. Gauri Misra and Sri Prakhar Misra, on second and fourth Sunday of each month in day hours at a place which is agreed between the parties at Sultanpur and in that regard, the respondent-Sri Satish Chandra Mishra would not prevent the father of the minors in any manner whatsoever it may be.
No order as to costs.
Order Date :- 27.11.2019 Jyoti/-