Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 35 (KAR)

Venkata N. Padmanabhan v. Padmini Gopalakrishnan

2016-01-08

B.VEERAPPA, MOHAN M.SHANTANAGOUDAR

body2016
JUDGMENT : B. Veerappa, J. 1. MFA 8959/2011 is filed by the husband (hereinafter referred to as the 'appellant') challenging the decree granting the custody of child in favour of the wife and MFA 8503/2011 is filed by the wife (hereinafter referred to as the 'respondent') challenging the decree of divorce made in favour of the husband, against the judgment and decree dated 29.7.2011 made in M.C. No.2809/2008 on the file of the I Additional Principal Judge, Family Court, Bangalore. 2. Since these matters are filed against the same judgment and decree, they are heard together and decided by this common judgment. 3. The husband filed M.C. No. 2809/2008 against the wife under the provisions of Section13(1)(i)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') contending that the marriage between the parties was solemnized at Chennai on 12.7.2000 as per the Hindu rites and customs; that the appellant/husband, who is qualified in B.Tech, is awarded with Ph.D. from a University in U.S; at the time of marriage, he was gainfully employed in U.S; the wife was also qualified in B. Tech and after the marriage she prosecuted Ph.D., with active support of the husband; in the month of March, 2007, wife (hereinafter called as respondent) moved to Hyderabad - the native place of her parents and thereafter to Bengaluru along with her parents; Later in the month of March 2007, the appellant-husband also came to Bengaluru and occupied a rented residential apartment; out of their wedlock, the respondent gave birth to a female child by name Hamsini Neeraja Padmanabhan at Bengaluru on 2.6.2007. During the stay of the appellant and respondent in the matrimonial home, the parents of the respondent went on dominating over the appellant in each and every matter. The same was tolerated by him. On 19.7.2007 without consulting and respecting the advise of the appellant, the respondent has left the matrimonial home along with 6 weeks old baby, which act of the respondent amounted to cruelty and desertion. Thereafter, the appellant has sent e-mail to the respondent and also spoke over phone for which there was no proper response from her. The respondent has not bothered even to inform about the welfare of the child. On 29.8.2007 the respondent contacted the appellant through e-mail with false allegations justifying leaving the matrimonial home without informing the appellant. Thereafter, the appellant has sent e-mail to the respondent and also spoke over phone for which there was no proper response from her. The respondent has not bothered even to inform about the welfare of the child. On 29.8.2007 the respondent contacted the appellant through e-mail with false allegations justifying leaving the matrimonial home without informing the appellant. Thereafter, the parents of the appellant bestowed their every effort for reconciliation which ultimately yielded no fruits. Even the efforts made by the appellant to persuade the respondent for returning to matrimonial home also went in vain. Therefore, he contended that the act of the respondent amounted to desertion. The appellant further alleged that the respondent is under the thumb of her parents. According to him, the acts of the respondent and the parents of the respondent caused mental torture and agony. Therefore, the appellant sought for dissolution of marriage and also permanent custody of the minor child etc. 4. The respondent/wife filed statement of objections before the Family Court admitting her relationship with the appellant and the birth of the child. She denied all other allegations made in the petition inter-alia contending that despite her efforts for reconciliation, the same has not been materialized due to non co-operative attitude and latches on the part of the appellant. According to her, the appellant has failed to show natural concern to her as well as to the child. Therefore, she is willing to give consent for dissolution of the marriage and stated that the petition may be allowed in so far as prayer No. 1 is concerned. The petition in so far as other relief with regard to custody of the child may be dismissed. 5. The respondent also filed counter claim under Section 23-A of the Act contending that initially the relationship appeared to be normal and subsequently, the respondent discovered that the appellant is a moody person and of fetish behaviour. The petition in so far as other relief with regard to custody of the child may be dismissed. 5. The respondent also filed counter claim under Section 23-A of the Act contending that initially the relationship appeared to be normal and subsequently, the respondent discovered that the appellant is a moody person and of fetish behaviour. She further contended that appellant is a self centered and egoistic person; he has not extended support for Ph.D. course; he is always addicted to the computer and is not spending time with her; there is no required response when she tried to intimate with the appellant; He is jealous of the progress of the respondent; he is suspicious in nature, paranoid person, is not believing others which creates stress and strain on her; He is very close to his family members and became arrogant to her parents; his behaviour is unpredictable; soon after the birth of the child, he did not allow the mother of the wife to stay in the hospital and he is not evincing any interest for the health of the infant child, not showing any concern to the child; he was not properly responding when the father of the respondent had undergone surgery; she has not deserted the appellant, but it was he, who has deserted her and has subjected her to cruelty. The respondent sacrificed all her needs for the welfare of the child. The child was reluctant to go alone with the appellant at the time of visitation. She has admitted the child to a good pre-school at Hyderabad and is very much interested in the welfare of the child. The appellant is an American citizen and his parents are also green card holders, who are intending to settle permanently in America. Two of his sisters are also in America and hence, he intends that his child also be permanently settled in America. But the respondent, who is permanently settled in India intends that the child is not disturbed from the present environment. On these among others grounds she prayed for a decree of divorce and dismissal of the petition filed by the appellant as well as for permanent custody and guardianship of the minor child. 6. Based on the pleadings, the Family Court framed the following issues: "1. Whether the petitioner has established that the respondent subjected him to cruelty? 2. On these among others grounds she prayed for a decree of divorce and dismissal of the petition filed by the appellant as well as for permanent custody and guardianship of the minor child. 6. Based on the pleadings, the Family Court framed the following issues: "1. Whether the petitioner has established that the respondent subjected him to cruelty? 2. Whether the respondent has established that the petitioner subjected her to cruelty? 3. Whether the petitioner has established that he is entitled to custody of his minor daughter Hamsini as contended in I.A. No. 10 under Section 26 of the Act? 4. Whether the respondent has established that she is entitled to custody of her minor daughter Hamsini? 5. What order?" 7. In order to establish his case, the appellant/husband examined himself as P.W.1 and witnesses - his father as P.W.2 and mother as P.W.3. The documents marked as Exs.P.1 to P.299 and Ex.P.34(a) are tendered in evidence through him. The respondent/wife examined herself as R.W.1, her mother as R.W.2 and father as R.W.3 and marked documents as Exs.R.1 to 47. 8. After considering the entire material on record, the Family Court by the impugned judgment and decree has allowed the petition filed under Section 13(1)(i)(ia) of the Hindu Marriage Act holding that appellant/husband has established that he was subjected to cruelty by the respondent/wife and the wife failed to establish the cruelty by the appellant as alleged in the counter claim. The marriage between the parties is dissolved by dismissing the counter claim. It was also held that the respondent is entitled for custody of the child till the child attains puberty and granted visitation rights to the appellant/husband, against which the present appeals are filed. 9. We have heard the learned counsel for the parties to the lis. 10. Smt. Meena Venugopal, learned Advocate for appellant - Husband contended that the Family Court committed an error in granting custody of minor child in favour of the respondent - wife without considering the pleadings and evidence on record. The respondent-mother is the parent who broke the child's home by deserting her matrimonial home for no justifiable reason and then rebuffed every effort by the father - appellant to restore the marriage and the unbroken home for the child. The respondent-mother is the parent who broke the child's home by deserting her matrimonial home for no justifiable reason and then rebuffed every effort by the father - appellant to restore the marriage and the unbroken home for the child. The lack of real concern for the child on the part of the respondent is clear from the fact that she even subjected the child to a "Pyschological Assessment and Treatment" thereby permanently branding the female child "Pyschologically Impacted" which clearly indicate the respondent's own personal interests and priorities being paramount than the child's interest. She further contended if the custody of the child is granted to the appellant with visitation rights to respondent, it will be practically a seamless change for the child with added advantage of being in custody of the appellant, who is fully committed to provide the child the maximum possible access to other parent-respondent. The change of custody to the appellant would be a clear advantage of, and in the paramount interest of, the child. Therefore, she sought to set aside the decree of the Family Court insofar as granting custody of the child in favour of the respondent - mother. 11. Per contra, Smt. M.P. Geetha Devi, learned Advocate for respondent - wife sought to justify the impugned judgment granting custody of the child in favour of the respondent - mother. She further contended that no pleading is forthcoming in the objections filed with regard to custody of the child therefore, the present appeal filed by the appellant is not maintainable. She further submitted that the female child is aged 8 years old and therefore, custody should be with the mother and the child is afraid of her father as the appellant is always imbibing negative aspects against the mother. Respondent - mother is also an earning member as is clear from Ex.R30 (Employment certificate of the respondent - wife); the appellant is not in a position to maintain the child with proper care and concern and the child should not leave India without prior permission from the Court etc., hence sought for dismissal of the appeal. 12. Both the parties need divorce as per their pleadings before the Family Court however, on different grounds and both the learned counsel for the parties have not seriously argued the matter in respect of grant of divorce. 12. Both the parties need divorce as per their pleadings before the Family Court however, on different grounds and both the learned counsel for the parties have not seriously argued the matter in respect of grant of divorce. There are allegations and counter allegations by the husband and wife against each other and both the parties are seeking divorce. 13. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 14. In view of the rival contentions urged by both the learned counsel for the parties, the points that arise for our consideration are:- "a. Whether the Family Court is justified in granting decree of divorce? b. Whether the Family Court is justified in holding that respondent - mother is entitled to custody of the child till the child attains puberty?" Point No. 1-Reg - Decree of Divorce: 15. It is an undisputed fact that the marriage between the parties was solemnized on 12.7.2000 as per Hindu Law, rites and customs and both are qualified persons. Out of their wedlock a female child by name Hamsini Neeraja Padmanabhan was born on 2.6.2007. The husband made allegations against the respondent-wife that the respondent went on dominating the appellant in each and every matter and the same was tolerated by him. On 19.7.2007 the respondent without respecting his advise left the matrimonial home along with 6 weeks baby, which act of the respondent amounts to cruelty and desertion. The respondent has not bothered even to inform about the welfare of the child to the appellant. On 29.8.2007 the respondent contacted the appellant through E-mail with false allegations and justified leaving the matrimonial home. The appellant further alleges that respondent is under the thumb of her parents and conduct of the respondent and her parents caused mental torture and agony to him. Therefore, he sought for divorce. 16. The respondent - wife admitted the relationship of the appellant and birth of the child; she alleged that the appellant has failed to show natural concern to her as well as the child; she also contended that the non co-operative attitude and lapses on the part of the appellant causes mental torture and cruelty. She is willing to consent for dissolution of the marriage and prayed that the petition may be allowed insofar as the prayer No. 1 for divorce. She is willing to consent for dissolution of the marriage and prayed that the petition may be allowed insofar as the prayer No. 1 for divorce. The respondent filed counter claim under Section 23-A of the Hindu Marriage Act and contended that the appellant is a moody person and is of fetish behaviour and he is self centered and egoistic person; always addicted to computer and actually was not spending time with the respondent. There was no required response, when the respondent tried to be intimate with the petitioner; he was always jealous of the progress of the respondent; appellant is of suspicious in nature and is a paranoid person and does not believe in others which created stress and strain on the respondent. The respondent sacrificed her needs for the welfare of the child and the child was also happy with the mother. The child has been admitted to a good Pre-High School at Hyderabad and she is very much interested in the welfare of the child etc., hence prays dismissal of the petition regarding custody of child. 17. The Family Court recorded a finding that the appellant admitted in the cross-examination that during the years 2003, 2004 and 2006 he has stayed in the house of the parents of the respondent, this would show the sentiments of the respondent and also the parents of the respondent in the early years of marriage; it is also admitted that in the year 2006 he had attended the marriage of the sister of the respondent and thereafter celebrated Deepavali festival. This would show that he was respecting the sentiments of the respondent. Attempts are also made during the cross-examination to establish that the respondent was in the nature of dictating terms to the appellant. It is significant to note that he has instructed his wife to behave in an orderly manner and those acts will not amount to cruelty. The Family Court further recorded a finding, on appreciation of entire evidence on record, that the act of the respondent particularly, leaving the matrimonial home along with the child on 19.7.2007 without informing the appellant amounts to mental cruelty. The Family Court further recorded a finding, on appreciation of entire evidence on record, that the act of the respondent particularly, leaving the matrimonial home along with the child on 19.7.2007 without informing the appellant amounts to mental cruelty. The Family Court has further observed that though she admits in the cross-examination that during her visit to the appellant in the month of September 2007, she questioned the appellant as to why he has not taken divorce, she clarifies during cross examination by volunteering that in the context of information conveyed by the mother of the respondent that difference of opinion between the parties arose in the year 2003. In her objections to the main petition she has voluntarily stated that she has no objections for decreeing the petition for divorce. In view of the evidence and material documents produced by both the parties and on consideration of the entire material on record the Family Court was of the opinion that the appellant has established that the respondent has subjected him to cruelty and she has not established that the appellant has subjected her to any cruelty. We agree with the said finding of fact. Therefore, the Family Court rightly granted the decree of divorce. However, we hasten to add that certain small allegations made by wife against her husband also appears to be probable. Since both the parties are not interested to join and our efforts to unite them have also failed, we do not wish to comment anything further on the allegations and counter allegations. 18. The pleadings and evidence of both the parties on record clearly depict that both the parties need divorce however, on different grounds. And there is no serious arguments advanced by both the parties with regard to grant of decree of divorce and mainly they concentrated with regard to custody of the minor child. In view of the reasons stated above, Point No. 1 is held in the 'affirmative' holding that the Family Court is justified in granting decree of divorce. 19. Reg - Point No. 2 - With regard to custody of the minor child. The admitted fact is that the female child is aged about 8 years old. In view of the reasons stated above, Point No. 1 is held in the 'affirmative' holding that the Family Court is justified in granting decree of divorce. 19. Reg - Point No. 2 - With regard to custody of the minor child. The admitted fact is that the female child is aged about 8 years old. The Family Court considering the entire pleadings and evidence on record has observed that the mother is entitled to the custody of the child till the child attains puberty, giving visitation rights to the appellant - father keeping in mind the welfare of the female minor child as paramount consideration. Since, the appellant - father will be usually busy with his work-schedule, he cannot bestow the minimum care and concern to the minor child. No doubt parents of the appellant are presently capable to look after the child. The sisters of the appellant are also independently employed and settled in U.S. they are also busy in their own schedule. Keeping these facts in mind the Family Court is of the opinion, it is not proper to grant custody of the child to the appellant exercising powers under Section 26 of the Act. The respondent being the mother will bestow proper attention for upliftment of the child. The attachment of the child towards the respondent at this age cannot be lost sight of. The choice of the child may have to be understood by both the parents and they cannot ignore the choice of the child, accordingly Family Court granted custody of the child to the respondent - mother. 20. The provisions of a Section 13 of the Hindu Minority and Guardianship Act, 1956 deals with the welfare of the minor which is paramount consideration. The same reads as under:- "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. The same reads as under:- "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 the opinion that his or her guardianship will not be for the welfare of the minor." By a reading of the said provision makes it clear that the welfare of the minor child should be paramount consideration. In the appointment or declaration of any person as guardian by a Court, welfare of minor children should be of paramount consideration. 21. The Apex Court while considering the provisions of Sections 4, 7 and 17 of Guardians and Wards Act, 1890 in the case of NIL RATAN KUNDU AND ANOTHER v. ABHIJIT KUNDU reported in (2008) 9 SCC 413 held that the principles in relation to custody of a minor child are well settled. In determining the question as to who should be given the custody of the minor child, the paramount consideration is "welfare of the child" and not the rights of the parents under Statute for the time being in force; also held that in view of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890 the wishes of the minor children should be ascertained before passing the order and such examination also helps the Court in performing the onerous duty in exercising discretionary jurisdiction relating to custody of the minor child. Moreover the final decision rests with the Court, which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. 22. The Apex Court while considering the provisions of Section 13 of the Hindu Minority and Guardianship Act, 1956, in the case of GAURAV NAGPAL v. SUMEDHA NAGPAL reported in (2009) 1 SCC 42 has held as under:- "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. 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. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield 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." 23. It is relevant to state at this stage that the object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of wards' health, maintenance and education. The power and duty of the Court under the Act is the "welfare of the minors." The children are not mere chattels, nor are they mere play things for their parents. The better financial resources of either of the parents or their love for the child may be one of the relevant considerations, but, cannot be the sole determining factor for the custody of the children. 24. The provisions of Section 17 of the Guardians and Wards Act, 1890, read as under: "17. Matters to be considered 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. (4) x x x (5) The Court shall not appoint or declare any person to be a guardian against his will." Taking into consideration the provisions of Section 17 (3) of the Guardians and Wards Act 1890 and in compliance of the same, the minor female child who is aged about 8 years was invited to the Chambers of one of us (Hon'ble MSGJ) on 27.11.2015 at 2.00 p.m. We talked with all love, affection, sentiments and applying human touch to the problem with the child alone. We collected the wishes of the minor female child. The child was found to be quiet intelligent. She unequivocally refused to go or stay with the appellant and preferred to stay with her mother - respondent and also stated that she is happy with the mother and would like to continue with her mother. On the same day, both the parties and their learned Advocates on record were also invited to the Chambers at 2.30 p.m. 25. It is worthwhile to mention about the judgment of the Apex Court, while considering the provisions of Guardians and Wards Act, 1890, in the case of ROSY JACOB v. JACOB A. CHAKRAMAKKAL reported in (1973) 1 SCC 840 has held:- "That 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." 26. The Hon'ble Supreme Court while considering the provisions of Sections 7 and 17 of the Guardians and Wards Act, 1890 in the case of LEKHA v. P. ANIL KUMAR reported in (2006) 13 SCC 555 has held as under: - "18. According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. 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. CHENNA REDDI, AIR 1950 Mad 306 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 other 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. A man in his social capacity may be reckless or eccentric in certain respects and other 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 over-all development. 22. 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 over-all 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." 27. 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." 27. The provisions of Sections 7, 9, 12, 13, 17 and 25 of the Guardians and Wards Act, 1890, and Section 6 of the Hindu Minority and Guardianship Act, 1956, make "it manifestly clear that the paramount consideration is the welfare of the minor child and not statutory rights of the parents. The problem has to be solved rather with a human touch. In selecting a guardian, the Court exercises parens patriae jurisdiction. It must give due weightage to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, as well as physical comfort and moral values - Court must ascertain children's wishes and a child is not a property or commodity. Such issues should be handled with love, affection, sentiments and applying human touch to the problem." 28. Keeping in view the propositions held by the Hon'ble Supreme Court stated supra and considering the provisions of Sections 7, 9, 12, 13, 17 and 25 of the Guardians and Wards Act, 1890, and Section 6 of the Hindu Minority and Guardianship Act, 1956 and the provisions of the Hindu Marriage Act and considering both oral and documentary evidence on record, we are of the considered opinion, that the custody of the minor child with the mother, who is the natural guardian in terms of the impugned judgment and decree of the Family Court is justified. Lot of love and affection is showered on the child by the mother and the child is very much attached to her mother. We have fond hope that the both the parties being highly educated and cultured, with all modern outlook and well off would maintain cordial relations and conduct themselves decently, courteously and extend full co-operation for the well being of minor female child which is the object of the provisions of Guardians and Wards Act, 1890. Accordingly Point No. 2 is answered in the 'affirmative' holding that the impugned judgment and decree passed by the Family Court in favour of the respondent mother is just and proper. 29. Accordingly Point No. 2 is answered in the 'affirmative' holding that the impugned judgment and decree passed by the Family Court in favour of the respondent mother is just and proper. 29. In the result, we pass the following order: - "(i) MFA No. 8959/2011 filed by the husband/father is also dismissed confirming the judgment and decree dated 29.7.2011 made in M.C. No.2809/2008 granting decree - custody of the minor child in favour of the respondent -mother. (ii) MFA No. 8503/2013 filed by the wife is dismissed confirming the impugned judgment and decree dated 29.7.2011 made in M.C. No. 2809/2008 granting decree of divorce. (iii) The appellant - father is entitled to visit the child and have the custody of the child in the first half of the Dasara, Winter and Summer Vacations of the school. (iv) The respondent - mother is entitled the custody of the minor child in the second half of the Dasara, Winter and Summer Vacations with a direction to the respondent-mother to hand over the custody of the child commencing on the 2nd day of the vacations to the appellant-father without fail. (v) The appellant-father shall hand over custody of the child after completing the first half of the vacations as stated supra on the next day to the mother's custody. (vi) Further both the father and mother of the minor female child Hamsini Neeraja Padmanabhan are entitled to have the custody of the child on important festivals of their community alternatively. (vii) We however, we make it clear that whenever parents-teachers meeting is held in the School, the appellant-father and respondent-mother are hereby specifically directed to jointly attend the meeting. Further they shall not discuss about the strained relationship between them during the said period either with the child or with friends of child, their parents, teachers and others."