Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 3482 (MAD)

M. Udhayabanu v. K. S. Raja

2006-12-14

S.ASHOK KUMAR

body2006
Judgment : Application No. 3783 of 2006 has been field by the applicant, mother of the minor child Raghav, praying this Court to modify the earlier order of this Court dated 1.10.2004 made in Application No. 560 of 2004, viz., instead of interim custody granted for alternative Saturday from 10.00 a.m. to Sunday 12.00 Noon, to grant interim custody once in a year for 15 days or the days as may be fixed by this Court during the annual vacation of the school in which the minor child is going to study. 2. Application No. 3539 of 2006 has been filed by the applicant, mother of the minor child Raghav to permit the applicant to apply and get a passport for the minor child as the mother, guardian and custodian of the child. 3. The O.P. No. 56 of 2004 has been filed by the father of the minor child to declare the father as the de-jure guardian of the minor child and for directing the mother to hand over the custody of the minor child to him. 4. By earlier order dated 1.10.2004 made in Application No. 560 of 2004, this Court, by modification of the earlier orders granted interim custody of the minor child to the father to take the child on alternative Saturdays from 10.00 a.m., and keep the child and return the minor child on Sunday 12.00 Noon. 5. The brief facts of the case are as follows: The petitioner and the respondent viz., the father and mother of the minor child Raghav got married on 4.12.1997 and on 20.10.1998 the minor child Raghav was born. From 20.11.2000, there was misunderstanding between the spouses which resulted in filing a divorce petition by the respondent on 29.11.2002. On 17.12.2002, an ex parte decree was passed in H.M.O.P. No. 159 of 2002. On 4.2.2004, the respondent/father filed the original petition for guardianship and custody of the minor child. He also filed O.A. No. 560 of 2004 for interim custody of the child and on 27.2.2004, this Court passed an order of visitation right, which was later modified by order dated 20.7.2004, by granting interim custody of the child once in two weeks. Again the said order was modified by this Court on 1.10.2004 extending the duration of the interim custody as stated already on the application filed by the mother for suspension of the interim custody. Again the said order was modified by this Court on 1.10.2004 extending the duration of the interim custody as stated already on the application filed by the mother for suspension of the interim custody. Now as such, the respondent/father has got the right to take the minor child on alternative weeks from 10.00 a.m., on Saturdays and return the child at 12.00 noon on the Sundays. In Application No. 3783 of 2006 the applicant/ mother seeks to modify the said order and to grant interim custody once in a year for 15 days or the days as may be fixed by this Court during the annual vacation of the school in which the minor child is going to study. 6. The applicant/mother has also filed Application No. 3783 of 2006 seeking permission to apply and get passport for the minor child and to take the minor child to Singapore where she has got employment in a Computer Software Company viz., A-IT Software Services Pte., Ltd., on a contract for 2½ years. 7. Themain objections raised by the respondent/father of the minor child is that he is prepared to take the custody of the minor child and continue his education at Chennai, if the minor child is taken outside the jurisdiction of this Court, then there will be no control on the applicant/mother regarding return of the child to India if the mother fails to comply with any directions issued by this Court, and difficulty will arise for the respondent/father to seek the custody of the child. 8. Admittedly, the applicant and the respondent got divorced and the applicant remarried a Singapore Citizen during 2006 and the respondent has also re-married another lady, through whom he has got a child. The minor child is now 8 years old studying in 3rd Standard. He also appeared before this Court and when his wish was ascertained, he preferred to go with the mother. Of course we have no complaints against the father also. 9. Now the question is whether the mother can be permitted to take the minor child to Singapore, where she is going on a work contract and admit the minor child in a school at Singapore. The applicant has stated that her present salary is around Rs. 4.5 lakhs per annum whereas the respondents salary, according to his own admission is only Rs.25,000/-per month. The applicant has stated that her present salary is around Rs. 4.5 lakhs per annum whereas the respondents salary, according to his own admission is only Rs.25,000/-per month. According to the applicant, the minor child has become accustomed to sleep with her and fond of the mother and she is in better financial position to give a better education to the child and therefore she wants to take the child to the place where she is going to work. It is also alleged that so far the respondent has not spent any amount towards the maintenance or education of the minor. 10. Per contra, the respondent has contended that he is willing to sacrifice all his earnings for the sake of the minor child and further contends that if the minor is left to be taken out of India, beyond the jurisdiction of this Court, then there will be no control on the applicant to produce the minor before this Court and therefore the applicant should not be allowed to take the minor child outside the country. 11. Learned counsel for the respondent also contended that under the Guardian and Wards Act, for a male child, aged above 5 years, the father is the natural guardian and therefore the guardianship of a minor boy who crossed the age of 5 years is always coupled with the right of custody of the person of a minor. He also insisted to take up the main original petition itself filed by the respondent for custody of the minor child since if any order permitting the applicant to take the minor child abroad for a longer period, it would virtually amount to granting the very main relief of custody to the mother herself. The respondent has also produced nearly 40 photographs to establish that the minor child has been taken to various places of recreation and was very happy with his father. 12. The respondent also alleged that the applicant is not a fit person to be the custodian of the minor as she has been roaming from State to State and also to other countries on her employment. She is not a law abiding citizen as she has flouted the Court orders on two occasions. She has no due regards to Court proceedings and she remained absent wilfully in contempt proceedings and this Court also issued arrest warrant against her. She is not a law abiding citizen as she has flouted the Court orders on two occasions. She has no due regards to Court proceedings and she remained absent wilfully in contempt proceedings and this Court also issued arrest warrant against her. When the proceedings were pending before this Court, she took the child to Kolkatta without permission of this Court and without the knowledge of the respondent. She used to leave the child to her aged parents and used to go to other States and also to foreign countries. She is aspiring to go to all countries wherever better salary is offered, to lead an extravagant life and in view of her past conduct as well, there is no guarantee even if a conditional order is passed that she will obey the same. Therefore, the prayer of the applicant to take away the child to Singapore is beyond the control and supervision of this Court as Sections 26, 39(h) and 43 (1) of the Guardians and Wards Act prohibit such removal of the ward from the jurisdiction of the Court. 13. Learned counsel for the respondent also contended that in the matter of guardianship or custody of a ward to arrive at a balance of convenience among the claimants along with the welfare of the child, some of the factors have to be considered together viz., natural guardian under the law, the vested right of natural guardian under the law, the powers of the natural guardian in respect of the welfare of the ward, circumstances of the parties claiming guardianship or custody, conduct and the most fitness of the party who claims guardianship or custody of the ward, rights of claimant under personal law and statutory impediments. It is contended that the above factors are in favour of the respondent and in fact there is no allegation against the respondent or disqualifying him from having custody. He also contended that the minor child being a male child, it is only desirable that the father would be the most suitable person to decide his future as to his higher studies and his life career. 14. He also contended that the minor child being a male child, it is only desirable that the father would be the most suitable person to decide his future as to his higher studies and his life career. 14. Learned counsel for the respondent also alleged that the applicant has not disclosed anything about the person with whom she married but he reliably understands that the applicants husband belongs to Christianity and it is not known whether she has converted to Christianity and as per Section 6 of the Hindu Minority and Guardian Act, no person is entitled to act as a natural guardian, if he/she ceases to be a Hindu. 15. The respondent also submitted that very many Schools of International Standards are now available in the city and the respondent is willing to give a better education to the minor child. He also contended, that once he had made admission in the Padma Seshadri School at K.K. Nagar,Chennai. According to the respondent, he is hale and healthy, highly educated, employed in a Public Sector Undertaking, receiving handsome salary with medical and tour facilities also to his dependents and thus he is financially in a sound position having property of movables and immovables also. In fact, he had foregone his promotional opportunities considering the welfare of the ward. 16. Learned counsel for the respondent/father also relied upon the following judgments of the various Court for the respective legal propositions as tabled below: AIR 1969 Mad. 365 Had the person married a second wife and it was permissible under the personal law, then that would not however be a bar to his application under Section 25 being granted. AIR 1988 Del. 359 Section 25; Petition for custody of 9 month old girl by father, filed after the death of the mother, as against the maternal grand-father of the child and others. No disqualification on the part of the father established before Court, petition for custody ordered. AIR 1996 Raj. AIR 1988 Del. 359 Section 25; Petition for custody of 9 month old girl by father, filed after the death of the mother, as against the maternal grand-father of the child and others. No disqualification on the part of the father established before Court, petition for custody ordered. AIR 1996 Raj. 162 Section 25; Custody of child - child living with mother -father making application for custody, as soon as child attained age of five years, father not neglected in taking care and interest in child, he being Government servant can provide better facilities and opportunities to child for his betterment in comparison to mother who was highly educated but not gainfully employed, welfare of the child will be better served in custody of his father -desire of the child of nine years who is not old enough to form an intelligence preference, not proper. AIR 1969 Mad. 365 Had the person married a second wife and it was permissible under the personal law, then that would not however be a bar to his application under Section 25 being granted. AIR 2001 Mad. 103 No allegations against personal conduct and character of father of child -father not shown to be financially unsound to educate and support child -custody of minor cannot be denied to father - no adverse inference can be drawn on ground of complaint filed by maternal uncle of child against father, raising suspicion about death of mother of child when complaint was dropped by police after holding that death was accidental. 2005 (5) CTC 96 Court is required to take into account factors like health of minor child, education of minor child and other aspects of life to secure paramount welfare of minor -such factors cannot be determined by averments made in petition or counter statements or by arguments advanced on either side - interest of minor child can be determined after evidence is adduced. AIR 1971 Mys. 211 The question whether a father is fit or unfit to be the guardian of the person of the minor is a question of fact. It must be pleaded and established like any other fact. Mere saying that the mother is a better person to look after the interests of the minor than the father is not sufficient. AIR (39) 1952 Mad. It must be pleaded and established like any other fact. Mere saying that the mother is a better person to look after the interests of the minor than the father is not sufficient. AIR (39) 1952 Mad. 280 Unless the father is totally unsuitable or there is any other relation who would take charge of the child, the mother who has married a second husband, is not at all the person to whom the child of the first marriage should be entrusted. It would be impossible for her under her changed circumstances to look after the child and care for her well being. 1991 MLJ 212 Clause 17 of the Letters Patent Act confers jurisdiction on the Original Side of the High Court to decide the question of custody of minor child who is living permanently outside the original civil jurisdiction of the High Court also when the jurisdiction is involved, the question of convenience does not arise at all for consideration. AIR 1969 Mad. 365 Had the person married a second wife and it was permissible under the personal law, then that would not however be a bar to his application under Section 25 being granted. 2006 (2) Supreme 169 Respondent (father) appeared to be financially stable and found not disqualified in any way from being guardian of minor child -child had established good relation with sister of respondent, a retired school Headmistress, staying with respondent, and was able to relate to her aunt in the matters which would concern a growing girl during period of adolescence -interest of minor girl would be best served if she remained with the respondent but with sufficient access to appellant to visit the minor at frequent intervals. AIR 1914 PC 41 And further, no order declaring a guardian can by reason of Section 19, of the Guardian and Wards Act, 1890, be made during the lifetime of the father unless in the opinion of the Court he is unfit to be their guardian. AIR 2001 SC 2179 : (2001) 4 SCC 682 Custody of minor child -interest and welfare of child is paramount consideration and not convenience and pleasure of parents. AIR 2001 SC 2179 : (2001) 4 SCC 682 Custody of minor child -interest and welfare of child is paramount consideration and not convenience and pleasure of parents. 2006 (5) CTC 337 Father of minor children is their natural guardian - father re-married after death of his wife and such re-marriage by itself will not disentitle him to act as guardian of minor children Paramount importance would be welfare of minor children and when there is no allegation that the father is acting against the interest of the minor children, it is not proper to remove him from his guardianship - grandfather could not deny rights of father. 17. In most of the above decisions, either the wife/mother had deceased or the wife/mother was earning lesser income than the father, or about the fitness of the persons to be appointed as guardian. In the case on hand, as regards proof of the relevant factors for custody, there is no denial as to the income, their second marriage etc. Therefore, for interim custody of the minor child, except one or two decisions, the other authorities referred to above are not applicable and are distinguishable on facts. 18. On the other hand, learned counsel for the applicant/mother of the minor child, while denying the allegations of disobedience of the Court orders, contended that it is only the respondent who has suppressed the son born to him through his second wife. Learned counsel also contended that the minor child had been in association with the applicants husband who is a Singaporean and there is no animosity between them in that regard. 19. It is also contended that primarily as the Court of Wards under the Guardianship and Wards Act, 1890, this Court under Section 44 has the power to order restoration of the minor and punish the person or contumacy and this Court can regulate the conduct of the parent under Section 43. According to the International Convention, the parent who seeks the restoration of the custody of the minor, either unlawfully removed or retained after the period agreed, can initiate action from the parent country to recover the ward in the country where the ward was taken, has to oblige to the orders of the Court of Wards of the country where the ward was residing. Supreme Court of India also recognised the Hague Convention and clarified that the paramount consideration of the welfare warrants the decision to retain the child to the mother. In Githa Hariharanandan v. Reserve Bank of India AIR 1999 SC 1149 : (1999) 2 SCC 228 : (1999) 2 MLJ 62 (SC) : 1999 (1) CTC 481 a three-Judges Bench of the Hon’ble Supreme Court of India while interpreting Section 6(a) of the Act after taking into consideration of the Conventions and Elimination of all forms of discriminations against Women-1979 Beijing Declaration of Statutes to prevent discrimination of all forms against women, held that the Courts are under obligation to give due regard to international conventions and norms for construing domestic Laws if there is any inconsistency between them and Section 6(a) should be interpreted giving effect to international conventions and norms. Hence it is contended by the applicant that apart from the applicants undertaking and bona fides in assuring to abide by her undertaking, the respondent is protected by the above position of law and this Court has jurisdiction over the ward taken out of country specifically with the permission of this Court. 20. Learned counsel for the applicant also drew the attention of this Court to Chapter 25-Children (Part I of the 1985 Act: the Hague Convention), published by Butterworths in the Book “PRIVATE INTERNATIONAL LAW” (13th Edition-Indian reprint) authored by SIR PETER NORTH, wherein it is stated as follows: “The prime concern of the Hague Convention is the restoration of children who have been wrongfully removed, whether or not this is in breach of a custody order in one of the Contracting States. So it goes wider than the recognition and enforcement of custody orders and protects rights to custody even where there has been no order. Essential elements of the Convention are that it applies to a child under the age of 16 who was habitually resident in a Contracting State at the time when he was wrongfully removed or retained.…” “The habitual residence of the child is the crucial connecting factor and it is not defined in the Convention. It is essentially a question of fact for the English Court and a child can have only one habitual residence at any one time, though may have more than one during a year. The childs habitual residence is usually determined by the parents. It is essentially a question of fact for the English Court and a child can have only one habitual residence at any one time, though may have more than one during a year. The childs habitual residence is usually determined by the parents. So a removal from one country with the consent of both parents will change the childs habitual residence even though one parent later changes his or her mind. However, a childs habitual residence cannot be changed by one parent without the consent of the other…” “Where a parent awarded an interim custody order is prohibited from removing the child from the jurisdiction, but the rights of the Court do not appear to continue once a final custody order has been made.” (emphasis supplied) 21. The above legal propositions are decided case laws of various foreign countries as seen from the said Book. A perusal of the above would make it clear that granting an interim custody to a parent who takes the child to a foreign country would not change the habitual residence unless and until permanent custody is given. The Author also cites an example as to how a child who has been wrongfully removed from France to England could be retrieved by making application to the Central Authority in France. Part II of the 1985 Act, of the Book, deals with the “Council of Europe Convention”. But of course these are all applicable and enforced only between the contracting countries, and we are not sure whether India, a country situated in the Asian Region is also a signatory to such Conventions. 22. Learned counsel for the applicant also cited the decision reported in 1997 (2) CTC 237 wherein it was held that the father cannot all of a sudden ask for custody of son without doing anything towards education or providing basic minimum comforts for the minor child and custody of child should be left with mother if minor is of tender age even though father does not suffer from any disqualification, 23. But, in the present case, prima facie there is no disqualification attributed to either side. The allegation of conversion to Christianity by wife or not is a matter to be decided at the time of final hearing of the permanent custody by letting in evidence. But, in the present case, prima facie there is no disqualification attributed to either side. The allegation of conversion to Christianity by wife or not is a matter to be decided at the time of final hearing of the permanent custody by letting in evidence. It is also not in dispute that the mother, being a Software Engineer of a Multi National Company is earning more than the father. 24. In JT 1993 (1) SC 229, the Supreme Court held that the question regarding the custody of the minor daughter cannot be decided on the legal rights of the parties. The custody of the child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. In AIR 1985 Del. 159 , the Delhi High Court held that the paramount consideration is the welfare of a child, in deciding a case of custody of a child. In proper cases, the Court may deprive the father of the custody of children. 25. Thus, from the decisions cited by either side, it is clear that the welfare of the minor is the paramount consideration, and the parent cannot claim priority over the welfare and wishes of the ward. Of course, when the child was enquired as to his fathers name he instantaneously said the name of the respondent, but he desired to go along with the mother. Considering the facts and circumstances of the case, this Court also suggested three ways viz., (i) the minor child may be permitted to go along with the mother with an undertaking to produce and hand over custody to the respondent during school annual vacations as agreed between them; (ii) the custody of the child may be given to the respondent and the applicant shall be permitted to have the visitation right and interim custody whenever she comes on leave from abroad; and (iii) the minors child shall be admitted in a Boarding School of good reputation and the expenses shall be met by both parties. But the applicant as well as the respondent stick on to their stand of having the custody of the minor child and they did not agree for the third suggestion. But the applicant as well as the respondent stick on to their stand of having the custody of the minor child and they did not agree for the third suggestion. It cannot be denied that in these days after acquiring professional degrees, it is the dream of everyone to go abroad to earn a lot and even settle in foreign countries. At the same time, it cannot be also disputed that students from other foreign countries come to study such professional degrees in the Indian Educational Institutions. But these are all the aspects to be decided by the boy on his attaining majority. In the circumstances, taking into consideration the tender age of the minor child, I am of the view that the minor child may be permitted to go along with the mother. 26. Therefore, I deem it fit to modify the earlier order and permit the applicant/mother to take the minor child along with her, out of the country, on her undertaking to produce the minor child for the custody of the respondent/father once in six months for a period of 15 days which may be on the half-yearly and annual examination holidays of the minor child. Application No. 3783 of 2006 is ordered accordingly. 27. It is also made clear that the applicant, being a software engineer of a Multi National Company and often changing employment from one Company to another Company, she shall take appropriate steps for the continuance of the studies of the minor child wherever she shifts her residence and shall not leave the child with anybody. 28. Consequently, Application No. 3539 of 2006 is also ordered, granting permission to the applicant to take passport for the minor child Raghav as the mother, guardian and custodian of the child to take him abroad.