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Rajasthan High Court · body

2012 DIGILAW 1978 (RAJ)

Murari Lal Sidana v. Anita

2012-09-19

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—In this case the tug of war is over the custody of two children, Nikhil, aged about thirteen and a half years and Chandini @ Charvi, aged about twelve years. While the Appellants, the grand-parents, who have brought up the children almost ever since their birth, claim the right to their custody, the respondent--the mother--claims the right on the basis of her motherhood. Since the appellant No. 1, the grandfather has expired during the pendency of this appeal the contest is now reduced to between the appellant No. 2, the grand-mother, and the respondent-mother. (However, for the sake of convenience the word ‘the appellants’ shall be used, but it shall connote only ‘the appellant No. 2’). The appellants are aggrieved by the judgment dated 20-04-07 passed by the Additional District Judge No. 2, Sri Ganganagar, Camp Suratgarh, where by the learned judge has granted the custody of the children to the respondent-mother. 2. Briefly the facts of the case are that on 10.10.1997, the appellants’ son, Rajesh Kumar married Anita, the respondent, as per the Hindu rites and customs. Out of the wedlock, Nikhil was born on 1.5.1999, and Charvi on 6.12.2000. Initially, the relationship between the husband and the wife was cordial. However, after Nikhil’s birth, it began to sour. While the appellants and the respondent have held each other responsible for the souring of the matrimonial relationship, the fact remains that on 9.5.2002 the couple parted. The children were left with the father and the grand-parents, the appellants. Subsequently, on 8.10.2003, Rajesh Kumar, the father, committed suicide, leaving the kids to the care of the appellants. According to the appellants, the respondent did not come to grieve with the family at the loss of her husband and of their son. Ever since 2002, the children are under the care of the appellants. Presently, the children are residing with the grand-mother, the appellant No. 2. 3. On 18-3-2004, the respondent moved an application for the custody of the children under Section 25 of the Guardians and Wards act, 1890 (‘the Act of 1890’, for short) and under Section 6 of the Hindu Minority and Guardianship Act, 1956 (‘the Act of 1956’, for short). In order to buttress her case, Smt. Anita examined a number of witnesses and submitted a few documents. In turn, the appellants also examined a number of witnesses and submitted a few documents. In order to buttress her case, Smt. Anita examined a number of witnesses and submitted a few documents. In turn, the appellants also examined a number of witnesses and submitted a few documents. After going through the oral and documentary evidence, by judgment and decree dated 20-04-2007, the learned Judge granted the custody of the children to the respondent-mother. Hence, this appeal before this court by the grand-parents. 4. Mr. R. K. Singhal, the learned counsel for the appellants, has strenuously raised the following contentions before this court: firstly, the learned judge has based the decision not on the evidence produced by the parties, but on basis of presumptions, conjectures and surmises. The learned judge has presumed that “a mother is always the well-wisher of the children.” Therefore, notwithstanding the fact that the respondent had abandoned the children just after they were born, still he has given the custody to her. Secondly, the learned judge has not elicited the views of the children ostensibly on the ground that they are too young. According to the learned counsel the said ground is no longer available as the children are now more mature, Nikhil being thirteen and a half years old, and Charvi being twelve years old. Hence, their wishes should be considered by this court. Thirdly, the learned judge has ignored the fact that the children have always stayed with the appellants. The appellants have been looking after the welfare of the children, at least since the year 2000. Even after the death of appellant No. 1, the appellant No. 2 has been educating the children in the D.A.V. School, one of the best English medium schools in Sri Ganganagar. Moreover, the learned Judge has ignored the close harmony and solidarity of the paternal family. The aunt (Bua) has been looking after the children whenever the need has arisen. Even the elder uncle has looked after the children when required. Thus, the children have been living with the grand-mother, they have been interacting with their paternal aunt and uncles, with their paternal cousins; naturally they have a stronger bonding with the paternal family than with a mother who has never visited them, who has never spoken to them. Fourthly, the welfare of the children is the paramount consideration which should weigh with the court. Fourthly, the welfare of the children is the paramount consideration which should weigh with the court. In order to support this contention, the learned counsel has relied upon the following cases: Rosy Jacob vs. Jacob A. Chakramakkal (AIR 1973SC 2090), R.V. Srinath Prasad vs. Nandmuri Jayakrishna & Ors. ( AIR 2001 SC 1056 ), Nil Ratan Kundu & Ano. vs. Abhijit Kundu ( (2008) 9 SCC 413 ), Athar Hussain vs. Syed Siraj Ahmed & Ors ( AIR 2010 SC 1417 = 2010(3) RLW 2297 (SC)), Vishnu & Ors vs. Jaya ( AIR 2010 SC 2092 = 2010(2) RLW 1917 (SC)), Gaurav Nagpal vs. Sumedha Nagpal ( AIR 2009 SC 557 ). Fifthly, it would hurt the interest of the children to snatch them away from the environment in which they have lived and prospered for the last thirteen years, and to expose them to an unfamiliar environment. They have never inter-acted with the mother; the mother is a total stranger to them. If the custody were to be handed over to her, the children would be forced to deal with a total stranger. Such a situation would wreck the children emotionally, and psychologically. It may adversely affect the development of their personality. For, in a totally strange environment, the children are likely to withdraw into themselves. Thus, it would be in the interest of the children to stay with their grandmother and to continue their studies at Sri. Ganganagar. 5. On the other hand, Dr. Pushpendra S. Bhati, the learned counsel for the respondent-mother has made the following submissions: firstly, the mother has a natural love and affection for the children. After all, in the Indian society, the mother is the one who looks after the welfare of the children from the moment of their birth. Secondly, recognizing this natural tendency of the mother, Section 6 of the Act of 1956 makes the mother the natural guardian after the father. Therefore, she has a right of preference over the rights of the grand-mother. Hence, the custody should be given to the respondent-mother. Thirdly, since the respondent is wellemployed as a teacher, since she is living in Jaipur, she would be in a better position to get the children educated in a bigger and better city. Fourthly, the appellant No. 2, the grandmother, is an old lady. Hence, the custody should be given to the respondent-mother. Thirdly, since the respondent is wellemployed as a teacher, since she is living in Jaipur, she would be in a better position to get the children educated in a bigger and better city. Fourthly, the appellant No. 2, the grandmother, is an old lady. In case of her death, the children would be abandoned, would be forsaken and forgotten. Therefore, it would be in their interest to be with the mother. In fact, the mother has not remarried only because she wants to devote her life to the welfare of her children. Fifthly, the children are too immature to understand the requirements of life, of their future. Hence, their wishes cannot be the paramount consideration. Since the children have been kept away from the mother, naturally, they do not have a sense of bonding with them. Hence, their wishes cannot be the guiding force in deciding their custody. In order to buttress his contentions, the learned counsel has relied upon the following cases: Ashish Ranjan vs. Anupma Tandon & Ano ( (2010) 14 SCC 274 ), Ruchi Majoo vs. Sanjeev Majoo ( (2011) 6 SCC 479 ), Vikram Vir Vohra vs. Shalini Bhalla ( (2010) 4 SCC 409 = 2010(2) RLW 1128 (SC)), Gaurav Nagpal (Supra). 6. Heard the learned counsel for the parties, examined the record, peru-sed the impugned judgment, and considered the case law citied at the Bar. 7. The custody of the children may appear to be a difficult labyrinth to be crossed, but like the proverbial Ariadne’s ball of wool, there are sufficient legal provisions and legal principles to guide the court through this maze. 8. Section 6 of the Act of 1956 deals with the natural guardian of a Hindu minor as under: 6. 7. The custody of the children may appear to be a difficult labyrinth to be crossed, but like the proverbial Ariadne’s ball of wool, there are sufficient legal provisions and legal principles to guide the court through this maze. 8. Section 6 of the Act of 1956 deals with the natural guardian of a Hindu minor as under: 6. Natural guardians of a Hindu minor.- The Natural guardian 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 illegitimte 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). 9. However, Section 13 of the Act of 1956 prescribes that the welfare of the child shall be of the paramount consideration. Section 13 is as under: 13. Welfare of minor to be paramount consideration. - (1) In the appointment or declaration of any person as guardian of 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. 10. Similarly, Section 17 of the Act of 1890 lays down the matters which should be considered by the court while appointing the guardian for a child. The said section is as under: 17. Matters to be considered by the Court in appointing guardian. 10. Similarly, Section 17 of the Act of 1890 lays down the matters which should be considered by the court while appointing the guardian for a child. The said section is as under: 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 view 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 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.” 11. A bare perusal of these legal provisions reveals that while the mother is considered the natural guardian of the children after the father, but the paramount consideration in a case of child custody is “the welfare of the children”. 12. In catena of cases, the Hon’ble Supreme Court has opined the same concept. In the case of Mausami Moitra Ganguli vs. Jayanat Ganguli ( (2008) 7 SCC 673 ), the Apex Court held as under: 19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law pertaining to the custody of child contained in either the Guardians and wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 13. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 13. Similar view has been expressed in the case of Nil Ratan Kundu (supra), where the Hon’ble Supreme Court observed 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. 14. Even in the cases relied upon by the learned counsel for the res-pondent, such as Ashish Ranjan (supra), the Apex Court has annunciated the same principle. In the said case, the Hon’ble Supreme Court held as under: 18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. 15. Similar view has also been declared in the case of Nil Ratan Kundu (supra) where the Apex Court observed that “the principles in relation to 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.” (Also refer to Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42 ). 16. 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.” (Also refer to Gaurav Nagpal vs. Sumedha Nagpal (2009) 1 SCC 42 ). 16. Thus, the welfare of the children and not the position of the mother under the statute govern the custody of the children. Hence, the contention of the learned counsel for the respondent that the mother is entitled to have the children under Section 6 of the Act of 1956, that she should be given a preference over the grand-mother, is without any merit. 17. The Hon’ble Supreme Court has also propounded on the role of the court and on the factors which the Judge should consider in case of child custody. In the case of Nil Ratan Kundu (supra) the Apex Court opined as under: 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. 18. Thus, the court should avoid a technical and legalistic view; it should adopt a pragmatic and realistic view in such a case. Moreover, the court acts less as a court of law, and more as a court of equity. For it deals less with legal issues, and more with a human problem of the parents and the children. According to the Apex Court, “To repeat, issues relating to custody of minors and tender-aged children have to be handled with love, affection, sentiments and by applying human touch to the problem.” (Ref. to Nil Ratan Kundu (supra)). 19. Section 17 of the Act of 1890 lays down the parameters which are to be kept in mind while deciding “the welfare of the child”. to Nil Ratan Kundu (supra)). 19. Section 17 of the Act of 1890 lays down the parameters which are to be kept in mind while deciding “the welfare of the child”. They are “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.” Simultaneously, the court should keep the child’s ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings in mind. Since the interest of the child needs to be protected and promoted, the court should be alive to child psychology and to the development of his personality. The psychology of the child is a delicate one. In today’s day and age, children tend to be sensitive, who require emotional and materialistic support. Emotional support gives the child a feeling of psychological comfort, of confidence, of mental stability. Material support gives a feeling of well-being, of developing his potential strengths. To throw the child into an unfamiliar surrounding may prompt the child to withdraw within himself/ herself, to become an introvert, or to become shy, or it may embolden him to challenge the perceived authority and thereby to become a problem child or even a juvenile delinquent. Thus, to do so, is to invite disaster for his psychological well-being. Hence, the court must be alive to consequence of its order on the life of the child. He cannot be made a victim of the judicial process. Every effort should be made to protect and promote his innocent life and his sacred ambitions. 20. In the present case, it is an admitted fact that initially both the children lived with their parents. However, after the couple split in 2002, the children have lived with the grand-parents. They lost their father in 2003, ever since then it is the grand-parents who have been looking after the children. Thus, for almost a decade now, the grand-mother has looked after their physical, psychological, emotional, financial and moral needs. Obviously, over this period, the children have developed an emotional bonding with the grand-mother, have gotten used to the family environment, have settled in their school, have gained friends and admirers in the school and the neighborhood. Thus, for almost a decade now, the grand-mother has looked after their physical, psychological, emotional, financial and moral needs. Obviously, over this period, the children have developed an emotional bonding with the grand-mother, have gotten used to the family environment, have settled in their school, have gained friends and admirers in the school and the neighborhood. In contrast, they have faint memories of having a mother. They have never inter-acted with her. They have no emotional bonding with her. They have never lived in a large city like Jaipur. To them, the mother is a stranger, her city, an unfamiliar terrain. 21. During the course of the proceeding this court has interacted both with Nikhil and Charvi. Nikhil appeared to be a bright and intelligent child. His calmness, his clarity of thought, his ability to articulate was impressive. He informed this court that he is studying at the DVA School. He has a set of friends with whom he loves to play cricket. Whenever, his grand-mother falls ill, his aunt (Bua) looks after them. He and his sister also spend their holidays with his uncle (tauji), Krishna Kumar Sidhana. His uncle has two children with whom they get along very well. About his mother, he informed the court that she did not come to their house, when his father committed suicide. Even when he lost his grand-father, she did not come to meet the kids. She doesn’t talk to them over the phone. Once she had come to their uncle’s house and had threatened them that she would take away the children with the help of the police. When asked as to with whom he would like to live with, whether with the mother or with the grand-mother, he categorically stated “with the grand-mother”. When asked what would he do if he were directed to stay with the mother, he unequivocally said, “It would be difficult to follow such an order. I do not wish to follow such an order.” 22. Charvi, on the other hand, is a sensitive child who is deeply emotional. When she came into the chamber, she kept on clinging to her aunt and grand-mother. Uncomfortable in the unfamiliar surroundings of a court and chamber of a judge, she kept on crying. I do not wish to follow such an order.” 22. Charvi, on the other hand, is a sensitive child who is deeply emotional. When she came into the chamber, she kept on clinging to her aunt and grand-mother. Uncomfortable in the unfamiliar surroundings of a court and chamber of a judge, she kept on crying. Between her sobs, she said, “she has no desire to leave her grand-mother with whom she has stayed ever since she can remember.” (Note: while this court spoke to Charvi, the aunt and the grand-mother were present in the chamber as she refused to let go of them. But when this court spoke to Nikhil, they were not in the chamber.) 23. This court had also occasion to speak with the aunt (Bua) of the children. Considering the fact that the grand-mother is an old lady, this Court had asked the aunt (Bua) whether she and her husband would be in a position to take care of the children in case the grand-mother were to expire. She has assured that she, her husband, and her elder brother, Krishna Kumar Sidhana, would certainly be in a position to look after the children whenever the need arises. 24. This Court also spoke to the respondent-mother. Although she claimed that she was in a position to look after the children, but she was full of anger against the appellants, rather than concerned with the welfare of the children. 25. A bare perusal of the impugned judgment reveals that the learned judge’s appreciation of evidence is colored by his presumption that “a mother always has the interest of her children in her mind”. However, such a presumption is neither legal, nor warranted by the evidence available on record. Indisputably, when the couple split in 2002, the children remained with the father. The mother did not take them with her. From 2002-2003, while Rajesh Kumar was alive, she did not file any case for their custody. According to the testimony of the appellant No. 1, (N. A. W.1) after the death of Rajesh Kumar, she did not visit them. Instead, she filed an application for succession certificate in order to have access to Rajesh’s monies in the LIC and in his bank accounts. It is only in 2004, the respondent filed the present case for the child custody. Instead, she filed an application for succession certificate in order to have access to Rajesh’s monies in the LIC and in his bank accounts. It is only in 2004, the respondent filed the present case for the child custody. According to Nikhil, even when the children lost their grand-father, appellant No. 1, the respondent did not visit the children. According to him, she does not contact them, does not speak to them. With this overwhelming evidence, the learned judge has erred in presuming that a mother always has the interest of her children in her mind. 26. Of course, the learned counsel for the respondent has vociferously argued that the respondent was prevented from meeting the children despite the orders of the courts. This is certainly unfortunate as the orders of the courts should have been followed. However, the fact remains that the children have no emotional bonding with the mother. For them, she continues to be a mirage, a figment of imagination, a total stranger. To consign their custody to her is to rip them from their secure surrounding, to subject them to a psychological trauma. Such an act would amount to making guinea pigs of the children in a judicial experiment. It would cause them a grave injustice if their custody were to be handed over to the mother. 27. Instead, it would be in the paramount interest of the children to permit them to continue to live with their grand-mother and their paternal family. They would continue to interact with relatives they have bonded with for all their lives, so far; they would continue to be in the physical surroundings they are familiar and comfortable with; they would continue to study in the school they are used to; they would continue to have the same set of friends and neighbors they are adjusted to. Since the children feel safe and secure, comfortable and confident being with their grand-mother, she should continue to have their custody. 28. It would not serve any beneficial purpose to give the respondent-mother visiting rights. For, the children are adamant that they do not wish to interact with her. Simultaneously, the appellants have not encouraged the children to interact with her. 28. It would not serve any beneficial purpose to give the respondent-mother visiting rights. For, the children are adamant that they do not wish to interact with her. Simultaneously, the appellants have not encouraged the children to interact with her. If the visiting right were given to the respondent-mother, it may cause emotional and psychological trauma to the children who would have to comply with a court order that they are absolutely uncomfortable with. Since children should be permitted to develop their personality without too much of emotional and psychological disturbance, it would be in the interest of the welfare of the children to deny the visiting rights to the mother. 29. For the reasons stated above, this appeal is hereby allowed. The impugned judgment and decree dated 20-04-2007 is quashed and set aside. The custody of the children, Nikhil and Charvi, shall continue to be with appellant No. 2, their grand-mother. No order as to cost.