CUSTODY OF CHILD – WELFARE OF THE CHILD

CUSTODY OF CHILD – WELFARE OF THE CHILD

  1. It is well settled that while taking a decision

regarding custody or other issues pertaining to a

child, welfare of the child is of paramount

consideration.

This Court in Gaurav Nagpal vs. Sumedha

Nagpal, (2009) 1 SCC 42, had occasion to consider the

parameters while determining the issues of child

custody and visitation rights, entire law on the

subject was reviewed.

This Court referred to English

Law, American Law, the statutory provisions of Guardian

and Wards Act, 1890 and provisions of Hindu Minority

and Guardianship Act, 1956, this Court laid down

following in paragraph Nos. 43, 44, 45, 46 and 51:

“43. 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.

  1. In Saraswathibai Shripad Ved v. Shripad

Vasanji Ved, ILR 1941 Bom 455 : AIR 1941 Bom

103; the High Court of Bombay stated;

“….It is not the welfare of the father,

nor the welfare of the mother, that is the

paramount consideration for the Court. It

is the welfare of the minor and of the

minor alone which is the paramount

consideration…..”

(emphasis supplied)

  1. In Rosy Jacob v. Jacob A. Chakramakkal,

(1973) 1 SCC 840, this Court held that object

and purpose of the 1890 Act is not merely

physical custody of the minor but due

protection of the rights of ward’s health,

maintenance and education. The power and duty

of the Court under the Act is the welfare of

minor. In considering the question of welfare

of minor, due regard has of course to be given

to the right of the father as natural guardian

but if the custody of the father cannot

promote the welfare of the children, he may be

refused such guardianship.

  1. 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 wellbeing. 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. ”

  1. Every child has right to proper health and

education and it is the primary duty of the parents to

ensure that child gets proper education. The Courts in

exercise of parens patriae jurisdiction have to decide

such delicate question. It has to consider the welfare

of the child as of paramount importance taking into

consideration other aspects of the matter including the

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rights of parents also. In reference to custody of a

minor, this Court had elaborated certain principles in

Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka,

(1982) 2 SCC 544, where this Court again reiterated

that welfare of the child is of paramount importance.

In paragraph No.17, following was laid down:

“17. The principles of law in relation to the

custody of a minor appear to be wellestablished. It is well­settled that any

matter concerning a minor, has to be

considered and decided only from the point of

view of the welfare and interest of the minor.

In dealing with a matter concerning a minor,

the Court has a special responsibility and it

is the duty of the Court to consider the

welfare of the minor and to protect the

minor’s interest. In considering the question

of custody of a minor, the Court has to be

guided by the only consideration of the

welfare of the minor.”

  1. In the above case, the issue of minor girl came for

consideration in the context of custody. The mother,

who was school teacher wanted to send the child to

boarding school, which was opposed by the father, who

wanted to have custody of the minor girl. It is to be

noted that in the said case the minor girl has

expressed her wish not to go to boarding school. This

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Court held that in embittered relationship between the

parents and the attempt of one spouse poisoning the

mind of other spouse has disastrous effect. In

paragraph Nos. 32 to 35 following was laid down:

“32. The effect on the little girl of the

embittered relationship between her parents

and the attempt of the father to poison the

mind of the daughter against her mother and to

alienate her from the mother has been simply

disastrous. The intelligent and sensible girl,

distressed at the acrimony between her

parents, who wanted to spend her time with

each of her parents as she is deeply attached

to both, as recorded by Lentin, J. in his

order dated June 28, 1979, was on the verge of

near nervous break­down as noted by the

Division Bench in its judgment dated July 31,

  1. The various orders passed in between

which we have set out at length also, indicate

what great mental strain and agony the little

girl had suffered because of the acrimonious

dispute between her parents. During this

period of two years, the girl had been under

home influence, as she had been staying with

her quarrelling parents in terms of the

various orders of the High Court. The little

girl also had been compelled to make her

appearances in Court from time to time. The

facts and circumstances clearly establish that

the effect of home influence on the minor in

the present case has been to reduce a bright,

happy and sensible child to a state of

complete misery; and, the extreme

psychological strain on the sensible mind of

the little girl has caused almost a near

nervous breakdown. When the atmosphere in a

house, vitiated and rendered surcharged with

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tension as a result of bitter squabbles

between husband and wife causes misery and

unhappiness to a child, who has to live in

constant psychological strain in such a broken

home in view of the bitter relationship

between her parents for each of whom she has

great affection, the healthy and normal growth

of the child is bound to be seriously

affected. In the interest and for the welfare

of the child in such a case, the child is

necessarily to be removed from such unhealthy

environment of a broken home surcharged with

tension. In such a case, the proper and best

way of serving the interest and welfare of the

child will be to remove the child from such

atmosphere of acrimony and tension and to put

the child in a place where the embittered

relationship between her parents does not

easily and constantly effect her tender mind.

  1. In the facts and circumstances of the

present case the best way to serve the welfare

and interest of the child will be to remove

the child from the unhealthy atmosphere at

home which has caused a very great strain on

her nerves and has certainly affected her

healthy growth, to a place where she can live

a normal healthy life and will have a good

opportunity of proper education and healthy

growth. We note with satisfaction that the

view that we have taken is fully supported by

the report of the Social Welfare Expert. The

report of the Social Welfare Expert, though

not binding on the Court is entitled to

weighty consideration. In the instant case,

the Expert has made a very careful study of

the entire matter and has given a well

reasoned report.

  1. Pursuant to the order passed by the

Division Bench of the Bombay High Court the

mother got the child admitted into Kimmins

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Boarding School at Panchgani. By an interim

order passed by this Court in the stay

application in this appeal, the child was

directed to continue her stay in the said

Boarding institution. By the interim order

passed by us on the conclusion of the hearing

we directed that the child should continue

her study in the Boarding School.

  1. On a consideration of all the facts and

circumstances of this case and bearing in

mind the paramount consideration of the

welfare of the child, we are of the opinion

that the child’s interest and welfare will be

best served by removing her from the

influence of home life and by directing that

she should continue to remain in the Boarding

School. It is not in dispute that Kimmins

Boarding School at Panchgani to which the

child has been admitted is a good

institution.”

  1. In the above case, the child was allowed to

continue in the boarding school. We notice one more

decision of this Court in Nutan Gautam vs. Prakash

Gautam, (2019) 4 SCC 734, which was a case where appeal

was filed by mother of a child against the order of the

High Court passed in First Appeal. While decreeing the

divorce petition of the husband ex parte the trial

court had directed the son, the minor boy, to be

admitted in a boarding school at New Delhi. Ex parte

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order passed by the trial court was challenged by the

mother in the High Court, which matter was pending

before the High Court. The High Court by interim order

had permitted the father to take the boy to boarding

school. The said interim order was challenged in this

Court. This Court interacted with the boy and took the

view that in the facts of the case, the child should

not be compelled to go to boarding school. This Court

allowed the child to continue his studies at Global

International School, Shahjahanpur, where he was

earlier studying in the interest of the child. Every

case where issue pertaining to custody of child and

education is decided depends upon the facts of each

case. No hard and fixed formula can be found out which

can be applied to each and every case. Each case has to

be examined in its own facts. We may again refer to the

judgment in Thrity Hoshie Dolikuka (supra), where also

this Court noticed that child has expressed his wishes

not to go to boarding school. This Court in the said

case took the view that the minor is not fit to form an

intelligent preference, which may be taken into

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consideration in deciding her welfare. In paragraph

No.26, following was laid down:

“26. In the facts and circumstances of this

case we are however, not inclined to interview

the minor daughter, as we are satisfied in the

present case that the minor is not fit to form

an intelligent preference which may be taken

into consideration in deciding her welfare. We

have earlier set out in extenso the various

orders passed by the various learned Judges of

the Bombay High Court after interviewing the

minor and the learned Judges have recorded

their impressions in their judgments and

orders. The impressions as recorded by the

learned Judges of the Bombay High Court, go to

indicate that the minor has expressed

different kinds of wishes at different times

under different conditions. It also appears

from the report of the Social Welfare Expert

that these interviews cast a gloom on the

sensitive mind of the tender girl and caused a

lot of strain and depression on her. Torn

between her love for both her parents and the

acrimonious dispute between them resulting in

the minor being dragged from court to court,

we can well appreciate that the sensitive mind

of the minor girl is bound to be sadly

affected. Though the girl is quite bright and

intelligent as recorded by the learned Judges

of the Bombay High Court in their orders after

their interviews with the girl who is of a

tender age and is placed in a very delicate

and embarrasing situation because of the

unfortunate relationship and litigation

between her parents for both of whom she has

great deal of affection, she is not in a

position to express any intelligent preference

which will be conducive to her interest and

welfare. Mature thinking is indeed necessary

in such a situation to decide as to what will

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enure to her benefit and welfare. Any child

who is placed in such an unfortunate position,

can hardly have the capacity to express an

intelligent preference which may require the

Court’s consideration to decide what should be

the course to be adopted for the child’s

welfare. The letters addressed by the daughter

to her mother from Panchgani and also a letter

addressed by her to her aunt (father’s sister)

also go to show that the minor cannot

understand her own mind properly and cannot

form any firm desire. We feel that sending for

the minor and interviewing her in the present

case will not only not serve any useful

purpose but will have the effect of creating

further depression and demoralisation in her

mind.”

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.5388­5389 Of 2019 (arising out of SLP(C)Nos.15912­15913 of 2018) SHEOLI HATI … APPELLANT(S) VERSUS SOMNATH DAS … RESPONDENT(S)