Writ Petition No.19469 of 2015

3rd May, 2016.

Petitioner Counsel: Shri RAJENDRA MISHRA
Respondent Counsel: Shri ASHUTOSH DUBEY

Cases Cited:
Mausami Moitra Ganguli Vs. Jayant Ganguli, 2008(5) ALL MR 948 (S.C.)=(2008) 7 SCC 673 [Para 5,12,19]
Gaytri Bajaj Vs. Jiten Bhalla, 2012(6) ALL MR 438 (S.C.)=AIR 2013 SC 102 [Para 5,19,21,25]
Nil Ratan Kundu and another Vs. Abhijit Kundu, 2008 ALL SCR 2016=2008 (9) SCC 413 [Para 11,13]
Sarswatibai Ved Vs. Shripad Ved, AIR 1941 Bombay 103 [Para 12,19]
Roxy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 [Para 12,19]
Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 [Para 12,19]
Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and another, (1984) 3 SCC 698 [Para 12]
Ruchi Majoo Vs. Sanjeev Majoo, 2011(3) ALL MR 991 (S.C.)=2011 (3) MP.L.J. (S.C.) 642 : (2011) 6 SCC 479 [Para 14]
Gaurav Nagpal Vs. Sumedha Nagpal, 2009(1) ALL MR 925 (S.C.) [Para 19]
Environmental and Consumer Protection Foundation Vs. Delhi Administration and others, 2012 ALL SCR 2917=2011 (13) SCC 17 [Para 23]
Sheshambal through L.Rs. Vs. Chelur Corporation Chelur Building and others, 2010 ALL SCR 1172=2010 (3) SCC 470 [Para 23]

JUDGMENT

JUDGMENT :- The petitioner No. 1 is paternal grand father of Master Shantanu Dubey son of respondent No. 1 and 2. In this petition filed under Article 227 of the Constitution, the grand father has challenged the order dated 01-04-2015 (Annexure P/5) whereby his application dated 12-12-2014 seeking modification of earlier order dated 20-05-2010 is rejected by the Court below.

2. The brief facts necessary for adjudication of this matter are that an application under the Guardians and Wards Act, 1890 was filed by the petitioner No. 1 before the Family Court, Jabalpur in respect of custody of minor child Shantanu. The respondents entered appearance and filed their response. The petitioner filed an application under Section 18 of the said Act seeking interim custody of the minor. The Court below after hearing the parties, passed a detailed order on 20-05-2010 (Annexure P/2). Accordingly, interim custody of minor was given to the petitioner No. 1. It was further directed that minor could be taken by his mother during school holidays but he has to be handed over to the petitioner No. 1 on opening of the school.

3. Shri Rajendra Mishra, learned counsel for the petitioner contends that WP. No.16639/12 was filed against said order dated 20-05-2010 before this Court by present petitioners. During the proceedings of the said case, the Hon'ble Court was pleased to call the minor and interacted with him. The minor refused to go with his mother. The order of this Court dated 27-03-2012 is filed as Annexure P/3. Shri Mishra further submits that the interim arrangement as per Annexure P/2 remained in force for quite sometime. However, when the minor was taken by the respondent No. 2, he was kept in confinement. He learnt certain bad habits. He was not allowed to go to school. He was subjected to torture and inhuman behavior. The petitioner No. 1 realized that it will not be in the interest of minor to remain with his mother. Thus, on the basis of subsequent events, an application dated 12-12-2014 was filed before the Court below seeking modification of said order dated 20-05-2010.

4. Shri Mishra by taking this Court to various paragraphs of this application contended that the child was even beaten up with cruelty and with 'Chappals'. The petitioner No. 1 took the child to the doctor for examination and it was found that the child sustained beating injuries. It is further urged that on 14- 04-2015, the petitioner No. 1 went to hand over the custody of child to his mother in compliance of the Court order at designated place. He was assaulted in a planned manner by the respondent No. 2 and her brother. In that incident, rib of petitioner No. 1 was fractured and he also sustained other injuries. Thereafter, the petitioner No. 1 reported the matter to police and was subjected to medico legal examination. The minor child has witnessed the said incident of beating. Apart from this, it is argued that the minor child was kidnapped by the brother of the respondent No. 2. A criminal case was registered against him and his bail application was rejected by the Court. Said brother of respondent No. 2 is still absconding.

5. Shri Rajendra Mishra urged that the Court below rejected the application on the ground that the earlier order dated 20-05-2010 has got a stamp of approval from the High Court and the matter is at the stage of final hearing. Hence, modification is impermissible. He submits that in the best interest of minor and in the peculiar facts of the case, the order needs modification otherwise it will have serious adverse impact on the mental and physical development of petitioner No. 2. Shri Mishra also relied on the subsequent report of counsellor and order sheet of Court below dated 17- 12-2015 to show that the minor in clear terms has stated that he does not want to reside with his mother. By placing reliance on (2008) 7 SCC 673 : [2008(5) ALL MR 948 (S.C.)] (Mausami Moitra Ganguli vs. Jayant Ganguli) and AIR 2013 SC 102 : [2012(6) ALL MR 438 (S.C.)] (Gaytri Bajaj vs. Jiten Bhalla), it is urged that the order dated 20-05- 2010 may be modified in the best interest of child and the impugned order may be set aside.

6. Shri Ashutosh Dubey, learned counsel for the respondent No. 1 urged that the order sheet dated 17-12-2015 shows that the minor made it clear that he wants to reside with the father and grand father. In those circumstances, the respondent No. 1 also filed an application seeking custody of minor. The same is rejected by the Court below recently. He submits that the minor was subjected to torture, harassment and inhuman treatment by the respondent No. 2. He submits that the custody should be given to the father.

7. Respondent No. 2 appeared in person. She placed reliance on her reply. She urged that the order passed by the Court below dated 20-05-2010 was not disturbed by this Court and, therefore, no modification in the said order is permissible. It is submitted that the petitioner No. 1 has not complied with the order of this Court dated 20-05-2015 and 06-11-2015. It is further submitted that the petitioner No. 2 is a minor son and, therefore this petition at his behest is not maintainable. The objection is raised that the petitioner No. 1 has challenged Annexure P/9 and P/11 but the said orders are not enclosed. It is further urged that against the order dated 27-03-2012 (Annexure P/3) passed by this Court, a review petition was filed which was disposed of on 29-06-2012. In the light of this order also no modification can be made. She also relied on the order dated 28-09-2011 whereby the Court below directed the petitioner No. 1 to strictly comply with the order dated 20-05-2010. The respondent No. 2 submitted that the minor initially did not depose before the Court below that he does not want to reside with his mother. The petitioner No. 1 has tutored the minor and, therefore, the minor makes statement on the pressure of the petitioner No. 1. It is further submitted that counsellor Smt. Harshita Chadran's report (Annexure R2/6) shows that the petitioner No. 1 is not regularly sending the minor to the school. The minor remains with his mother only on Sundays for few hours. In nutshell, it is submitted that no case is made out by the petitioner. Hence, no interference be made.

8. No other point is pressed by the parties.

9. I have bestowed my anxious consideration on the rival contentions and perused the record.

10. In view of the rival stand of the parties, the main question is whether the order of the Court below dated 20.05.2010 can be modified when the said order was unsuccessfully challenged by the petitioners before this Court in Writ Petition No.16627/2011. The Court below in the impugned order dated 01.04.2015 held that there is no evidence on record to show that the order dated 20.05.2010 which is in force for last five years has caused any adverse impact on physical and mental health of minor. There are diametrically opposite allegations of the parties. The Court below further held that the matter is at the stage of final hearing and since the evidence is over and matter will be decided at an earliest, no modification is required.

11. The ancillary issue is whether in a case of this nature, subsequent events and documents can be seen. Before dealing with the issue, it is apt to remember that the Apex Court in 2008 (9) SCC 413 : [2008 ALL SCR 2016] (Nil Ratan Kundu and another Vs. Abhijit Kundu) held that in determining the question of custody of a minor, the paramount consideration is "welfare of the child" and not the rights of the parents under a statute for the time being in force. It is noteworthy that in various countries the legal position and principles governing the field are almost same i.e. welfare of the child is paramount consideration for the purpose of custody. It is apt to quote few of them:-

In Halsbury's Laws of England, 4th Edn., Vol.24, Para 511 at p.217 it has been stated:

"511.........Where in any proceedings before any Court the custody or upbringing of a minor is in question, then, in deciding that question, the Court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother or the mother's claim is superior to that of the father.

In McGrath (infants), Re 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 a child is not to be measured by money only, nor by physical comfort only. 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 ties of affection be disregarded."

The Law in the United States is also not different. In American Jurisprudence, 2nd Edn. Vol.39, Para 31. p. 34, it is stated:

"As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the rights of must some times yield."

"Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interest of those whose welfare requires that they be in custody of one person or another; and hence, a Court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration.

An appication by a parent, through the medium of a habeas corpus proceeding, for custody of a child is address to the discretion of the Court, an custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be scarified by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment."

In Howarth Vs. Northcott it was stated:

"In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers add exerts the force of the state, as parents patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a Court of equity."

"The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ or by statute, but the primary purpose is to furnish a means by which the Court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate.

12. Apart from this, Section 6(c) of the Hindu Minority and Guardianship Act, 1956 makes it clear that the welfare of minor should be paramount consideration for the Court. A bare perusal of a development of law on this subject shows that it is the welfare of the child and not the right of the parents which will decide the question of custody. This view has been taken by Bombay High Court way back in AIR 1941 Bombay 103, Sarswatibai Ved Vs. Shripad Ved. The Apex Court in (1973) 1 SCC 840 Roxy Jacob Vs. Jacob A. Chakramakkal held that the object and the principal of 1890 Act is not merely providing physical custody of minor but due protection of the rights of the ward's maintenance and education. The power of the different Court under the Act is to ensure welfare of the minor. The same view is taken in (1982) 2 SCC 544, Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka; (1984) 3 SCC 698, Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and another and (2008) 7 SCC 673 : [2008(5) ALL MR 948 (S.C.)], Mausami Moitra Ganguli Vs. Jayant Ganguli.

13. In Nil Ratan Kundu [2008 ALL SCR 2016] (supra), the Apex Court in Para 52 and 57 has held as under :-

"52. ......... A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence of 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, may bound, to give due weight to take child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.

57. In our opinion, in such cases, it is not the "negative test" that the father is not "unfit" or disqualified to have custody of his son/daughter that is relevant, but the "positive test" that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of a minor in favour of the father, the mother or any other guardian." (Emphasis supplied)

14. In the judgment reported in 2011 (3) MPLJ (S.C.) 642 : (2011) 6 SCC 479 : [2011(3) ALL MR 991 (S.C.)], Ruchi Majoo Vs. Sanjeev Majoo, the Apex Court again followed the aforesaid principle of law i.e. the welfare of the minor is the paramount consideration for the Courts while exercising its parens patriae jurisdiction.

15. On the basis of aforesaid principles laid down by various Courts, it is clear that the welfare of the child is the paramount consideration for the Court.

16. This court is conscious of the fact that the children are not merely chattels or toys, and therefore, they cannot be directed to be handed over mechanically by taking assistance of a Statute.

17. At this stage, when main matter is to be decided by Court below on its own merits, I am not inclined to give any finding which may affect the outcome of the matter pending before the Court below. I am only inclined to decide whether the Court below was justified in rejecting the application in question. So far as the arguments of respondent No. 1 is concerned, suffice it to say that in this petition filed by the petitioner No. 1, no relief can be claimed by the respondent No. 1. The respondent No. 1 has not challenged the recent order referred to in his arguments whereby his application seeking custody of minor is rejected by Court below recently. In absence there to, in this petition, no relief is due to the respondent No. 1.

18. The respondent No.2 stated that orders Annexure-P/9 & P/11 are challenged in this WP but the same are not filed. This appears to be a typographical error. In para 1 of the petition, the petitioner made it clear that he has challenged the order dated dated 01.04.2015 (Annexure-P/5). Thus the objection raised by respondent No.2 in this regard is hyper technical in nature and is overruled. The other arguments raised by the respondent No. 2 are not relevant at this stage.

19. In the application dated 12.12.2014, the petitioner No.1 has narrated the incident which allegedly has an adverse impact on the minor. After considering the judgment of Mausami Moitra Ganguly [2008(5) ALL MR 948 (S.C.)] (supra), the Apex Court in Gayatri Bajaj [2012(6) ALL MR 438 (S.C.)] (supra) held that the law relating to custody of minors has received an exhaustive consideration of this Court in a series of pronouncements. In Gaurav Nagpal Vs. Sumedha Nagpal [2009(1) ALL MR 925 (S.C.)], the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswati Bai Shripad Ved Vs Shripad Vasanji Ved; Rosy Jacob Vs. Jacob A Chakramakkal, and Thirty Hoshie Dolikuka Vs. Hoshiam Shavdaksha Dolikuka, Court eventually concluded in paragraph 50 and 51 (of SCC) : (paras 42 and 43 of AIR, AIR SCW) that:

"50. That 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 Mousmi Moitra Ganguli's case (AIR 2008 SC 2262; 2008 AIR SCW 4043), 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 governs the rights of the parents and 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." (Emphasis supplied)

20. The views expressed in Para 19 and 20 of the report in Mousmi Moitra Ganguly Vs. Jayant Ganguli would require special notice. In the said case it has been held that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody. It was the further view of Supreme Court that the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.

21. In view of the principles laid down in Gayatri Bajaj [2012(6) ALL MR 438 (S.C.)] (Supra), it is clear that nothing will stand in the way of the Court in exercising its parens patrie jurisdiction in cases of this nature. At the cost of repetition, in my view, the human angle, the welfare of minor and wish of the child are relevant consideration for the Court. No doubt, the respondents filed reply to the application dated 12.12.2014 and denied allegations, the order dated 17.12.2015 shows that on the earlier date, the learned Judge has interviewed the minor in isolation (in chamber).

22. It is recorded by the Court below that the minor specifically stated that he does not want to go with mother. He does not even want to talk to her. The order sheet dated 17.12.2015 further shows that when the minor was asked in presence of litigants in the open Court to stay with his mother during vacation of the school, the minor in open court refused to go with mother. There was a quarrel between the respondent No.1 and 2 before Court below which was duly recorded in the order sheet dated 17.12.2015. During that incident, the minor started weeping and stated that he does not want to go with his mother. The Court below further recorded that the minor specifically and repeatedly stated that he want to go with petitioner No.1.

23. As held in 2011 (13) SCC 17 : [2012 ALL SCR 2917] (Environmental and Consumer Protection Foundation vs. Delhi Administration and others) and 2010 (3) SCC 470 : [2010 ALL SCR 1172] (Sheshambal through L.Rs. vs. Chelur Corporation Chelur Building and others) in certain circumstances subsequent events/documents can be examined by the Court. In my view, in the best interest of the minor, the order dated 20.05.2010 needs modification. Merely because as per circumstances prevailing earlier, the said order was not interfered with, this Court cannot shut its eyes and cannot prevent itself from exercising the jurisdiction which is in the best interest of the minor. At the cost of repetition, since there is nothing which can stand in the way of the Court, exercising its parens patrie jurisdiction, the earlier order passed in different facts situation cannot foreclose the fate of the minor.

24. If circumstances so warrant, the Court can pass appropriate orders to ensure welfare of the minor. For example, if any particular order is passed as per the factual matrix prevailing at a particular time and it gets stamp of approval from Higher Court but subsequent events warrant some modification in the best interest of child, the Court will act in the interest of the child and no technicality will come in the way of the Court in passing appropriate order for the welfare of minor.

25. As noticed above, after passing of order dated 20.05.10 which was unsuccessfully challenged before this Court, the minor (who is now aged about 11 years) repeatedly and specifically stated before the Court below that he does not want to stay with mother. In view of law laid down in Gayatri Bajaj [2012(6) ALL MR 438 (S.C.)] (supra) the desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.

26. On the basis of aforesaid analysis, in my view, the order dated 20.05.2010 deserves to be modified to the extent it was directed that during vacation of school of the minor, the respondent No.2 herein can take the minor with her. To this extent, the order dated 20.05.2010 is modified. The minor during school vacations also shall remain with petitioner No. 1. The remaining portion of the order is not disturbed. For the said reason, the impugned order dated 01.04.2015 is also modified to the extent indicated hereinabove. This order is passed in the best interest of the minor and the Court below is directed to decide the pending matter on its own merits at the earliest.

27. It is made clear that this order will not have any bearing whatsoever on the merits of the case pending before Court below. Court below shall decide the pending matter on its own merits. Petition is allowed to the extent indicated above. No cost.

Ordered accordingly.