Minocher Dinshaw Irani vs Keki Rustomji Irani and Others

A.P. Shah, J.—Frashmim is a one and half years old female child. Her father Minocher and her maternal grand parents Keki and Khorshed are fighting this legal battle for her custody. The parties are Parsis by religion. The petitioner Minocher married Pinky,, the daughter of respondent Nos. 1 and 2 Keki and Khorshed on 20th May, 1994 according to Parsirites. Frashmim was born on 18th May, 1995. Unfortunately soon after the birth of Frashmim, the petitioner''s wife Pinky fell ill. On diagnosis it was discovered that Pinky was suffering from malignant tumor in the skull as well as near the neck. Ulimately, the malignancy spread to the lungs and became terminal. Pinky died on 24th July, 1996. It seems that after her birth, Frashmim, the minor child, stayed in the house of the respondent Nos. 1 and 2 mainly due to the unfortunate developments which finally led to Pinky''s death. According to the petitioner, as Frashmim was in her infancy and required care and attention, it was decided by the petitioner and the respondent Nos. 1 and 2 who are the parents of Pinky that the petitioner and his mother and the respondent No. 1 should devote their attention and time to take care of Pinky at the hospital and that the respondent No. 2 who is Pinky''s mother and mother-in-law of the petitioner would take care of Frashmim. On the other hand, the respondents'' version is that the petitioner''s parents really did not care for the deceased Pinky or her child. They did not even attend Pinky''s funeral. Even the petitioner did not show much interest in Frashmim when Pinky was alive. The parties are giving conflicting versions but the fact remains that the child stayed with the maternal grand parents during the illness of Pinky and even after her death. It seems that after Pinky''s death, the petitioner approached the respondent Nos. 1 and 2 and requested them to hand over the custody of the child to the petitioner. The respondent Nos. 1 and 2 declined to give the custody.

It seems that there were some unpleasant scenes. At one stage, even the police was brought into picture. Finally in August, 1996 the petitioner filed the present petition for custody of Frashmim.

It is well settled that in any proceedings before any Court concerning the custody or guardianship of an infant, the Court must regard "the welfare of the child" as paramount consideration. The paramountcy of the welfare of the child is axiomatic. It is most dominant consideration in the consciousness of the Court. Yet the courts have found no subject more difficult to deal with than the meaning and application of the often-repeated phrase "the welfare of the child is of paramount consideration". The attitude of the Courts, where parents battle over children has not been uniform, though a tendency to lean in favour of the mother is discernible where the contest is between the parents. In this case the contest is not between the parents but between a parent - the father - on the one hand and the maternal grand parents on the other. Their respective Counsel Ms. Gonsalves and Mr. Shroff have advanced extensive submissions with great vehemence. Both are claiming that interest of the minor is best secured in the hands of their respective clients. Several decisions of the Apex Court as well as High Courts are pressed into service. Let us first consider the submissions.

Ms. Gonsalves submits that the petitioner is a natural guardian. He is not disqualified in any manner. He is well placed and staying in a comfortable flat with his parents. His father is a retired officer from the State Bank of India. Unfortunately, lately he has turned blind. But none th less he is in a position to take care of himself. His mother who is around 62 years of age is fit and healthy and can take care of the minor child. Ms. Gonsalves submits that the petitioner''s parents are not dependent on him as they are having their own income. His sisters are married and well settled. He is carrying on a tourist taxi business by engaging a driver. Except attending to the work for some time in the morning he can devote rest of the time for the minor child. Ms. Gonsalves says that both the petitioner and his mother are in position to look after Frashmim. Her client is also prepared to engage a full time maid servant to lookafter the child. Ms. Gonsalves submits that considering the circumstances custody must be given to the father who is natural guardian. Mr. Shroff vehemently opposes the submissions of Ms. Gonsalves. He points out that the petitioner is only a matriculate. He is required to devote most of the time for his business. The petitioner''s father is completely disabled on account of his blindness. The mother of the petitioner has grown old. She is hard of hearing. In these circumstances says Mr. Shroff that custody should not be handed over to the petitioner. Mr. Shroff contends that the child is an infant. She is residing with the respondents and has been brought up by the respondents from birth. She is completely stranger to the petitioner''s family in the house of the petitioner. Removing Frashmim from the care and custody of the respondents will have adverse impact on her who would be thrown in a new household amongst peoples who till date are totally strangers to her. Mr. Shroff contends that such an experience would be traumatic for the minor child who is just one year and ten months old. Mr. Shroff contends that on account of the handicap of the petitioner''s father, his mother is required to lookafter him through- out the day and she will not get time to lookafter the child. On the other hand, the respondent No. 2 can fully devote her time to the well being of the minor. Even other members of the respondents'' family who are extremely attached to Frashmim can also lookafter her. Mr. Shroff contends that the children of the respondent Nos. 1 and 2 i.e. the respondent Nos. 3 and 4 are better educated compared to the petitioner and that is a vital factor for deciding the issue of custody. Mr. Shroff contends that the custody of Frashmim should be continued with the respondent Nos. 1 and 2.

The short question which falls for my consideration is whether I should direct handing over child to the custody of the father by the maternal grand parents. There cannot be two opinions that the welfare of the minor is a dominant consideration in this case. In Rosy Jacob Vs. Jacob A. Chakramakkal, , the Supreme Court observed thus:

"the dominant consideration in making orders u/s 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor''s welfare."

The principle that the welfare of the child is a paramount consideration is easy to understand, but less easy to apply, particularly in the cases where the contesting parties are not the parents but the fight is between a parent and the maternal grand parents. Mr. Shroff brought to my notice the decision of Andhra Pradesh High Court in L. Chandran Vs. Venkatalakshmi and Another, . There a Division Bench of Andhra Pradesh while considering a case where the fight for custody of the minor was between the maternal grand parents and the father, held that the right of the father is not unlimited and even if he was able to establish that he is not unfit to be the guardian of the minor children, that will not insulate him from meeting a defence that for securing the welfare of the minor children, the custody cannot be given to him. If the Court is convinced that the welfare of the minors is better served, if the custody is given to some other persons, the fact that the natural guardian is not unfit to be the guardian of the person of the minor, will not prevent the Court from giving the custody of the minors to a person other than the father.

Mr. Shroff also brought to my notice the decision of the Punjab High Court in Captain Rattan Amol Singh Vs. Smt. Kamaljit Kaur, . There the Court held that the father''s right to the custody of his minor child is not absolute, no is it indefeasible in law, it is circumscribed by the consideration of the benefit and welfare of the minor. Mr. Shroff also brought to my notice the decision of Madhya Pradesh High Court in Budhulal Shankarlal Vs. An Infant-Child (not named) and Others, , where the Court directed handing over of custody of a new born child to the neighbours instead of the father. The next decision relied upon by Mr. Shroff is the decision reported in Baby Sarojam Vs. S. Vijayakrishnan Nair, . There the Court found that the father of the minor children was not unfit to be their guardian but entrusted their custody to their material grandmother, subject to certain imposed conditions. The Court observed :

"It cannot be said that the right of guardianship is inalienably interlinked with the right of custody. In the setting of the present day society, for that matter, in the setting of every society at anytime at any period, the human rights can only be relational. Recognition of father''s absolute right to the custody of the child would render the child an inanimate property or a chattel, which could be possessed and used as the owner pleases. Child is not a chattal. It possesses sacred human rights. Moreover, it is the most precious possession of the society in the State. As such it behoves the paramount obligation of the State to secure all the interests of the child and its welfare which gives the entitlement to the State to make inroads in the right of the natural guardian- ship, not only an inroad, but even annihilation of the right, if the situation demands such an action. This power of the State, by the statutory provision and by virtue of being a Guardian Court of the realm is given to Courts."

Ms. Gonsalves also relied upon certain decisions of the High Courts. In the first place, she drew my attention to a judgment of Kerala High Court in 1977 KLT 479, M. Madhavan Nair v. M. Viswanathan. There a Division Bench of the Kerala Court was considering the claim of custody of minor child by the father as against the maternal grand parents. The Division Bench held that there is a presumption in favour of the natural guardian in the mater of custody of the child as opposed to the claims of persons who are not to be considered as the natural guardians in-law. The Division Bench said that unless there is evidence to suggest that the natural guardian is not a fit person to be the guardian of his child or that for other reasons it will not be in the interests of the child''s welfare to entrust his custody to the natural guardian, the Court would ordinarily be inclined to accept his claim in preference to the claim of any other person. The Division Bench laid down the following principles relevant to the custody of a child :

(i) there is a presumption in favour of the natural guardian as opposed to those who are not natural guardians.

(ii) the claim of the natural guardian to the custody of the child should ordinarily be accepted.

(iii) the claim of the natural guardian should be rejected if he is not fit to be guardian or for some other reason giving custody to him is not considered to the child''s welfare."

Ms. Gonsalves next brought to my notice the decision of Rajasthan High Court in Smt. Dr. Snehlata Mathur Vs. Mahendra Narain, . There a learned Single Judge held that the applicant father, who was an Assistant Engineer, who had not married any other girl and there was no charge or allegation that he had any immoral habits, and was not found in any manner unfit to be appointed or declared as a guardian of minor girl and to keep her in his custody, he could not be deprived of the custody of his only daughter. Lastly, Ms. Gonsalves relied upon the decision of Kerala High Court reported in Munnodiyil Peravakutty Vs. Kuniyedath Chalil Velayudhan, . There the tussle was between the father of the child and maternal grand parents. The father was a Sergeant in he Indian Army having regular income. He got himself transferred to a place where he could bring up and educate the child under his supervision. The father was also having benefit of helping hands of his parents. Maternal grandfather, on the other hand, was not having regular income and of very old age. One of his son was mentally retarded. In the circumstances, it was held that custody should be awarded to the father.

Frashmim has to live with her father or the maternal grand parents. Which of them is able to provide conditions of life conducive to her welfare? This question has to be answered by consideration of the relevant factors which are brought to the notice of the Court. On careful scrutiny of the record, the following factors merge which are relevant for determining the issue of custody in the present case :

(i) The petitioner runs business of a tourist taxi and has a decent income. He has engaged a driver for running the taxi. The petitioner''s father is a retired officer from the State Bank of India. He has lately turned blind. Mother is around 62 years but appears to be healthy and fit. She is slightly hard of hearing, but this has not created any impediment in her routine life. The parents of the petitioner are having their own income, (ii) The petitioner is staying in an ownership flat of two bedrooms, a hall and a kitchen. There are only three members in the family The petitioner''s sisters are married and well settled, (iii) The maternal grand-parents are staying in comparatively a smaller apartment. The respondent No. 1 maternal grandfather retired as a cashier from a restaurant and the respondent No. 2 is a house wife. The respondent Nos. 3 and 4 are the children of the respondent Nos. 1 and 2. They are both educated and serving, but they are of marriageable age. The respondent No. l''s mother who is eighty years old also stays with the respondents, (iv) The petitioner is a matriculate from an English medium school. His father appears to be educated, but not the mother. The respondent Nos. 1 and 2 are also not much educated, though their children are. But the children are of marriageable age and this fact cannot be ignored, (v) Child is staying almost right from the birth in the respondent''s house. According to the petitioner on occasions child stayed in his house when his wife Pinky was required to be taken out of Mumbai, but the position in his behalf does not appear to be clear.

As far as the financial position is concerned, the petitioner is placed better than the respondents. But the affluence is not the sole criteria, otherwise it would mean that a parent who is more affluent would alone be entitled to custody. However the fact remains that the father is financially well placed. I have personally interviewed the petitioner''s parents as well as the respondents. I found that the petitioner''s father who has become blind recently can take care of himself. The mother is quite fit and healthy. It seems that she has a slight problem of hearing, but it cannot be denied that she is in position to lookafter the child. It is true that the petitioner is not much educated, but the same is the case with the respondent Nos. 1 and 2. No doubt, their children viz. respondent Nos. 3 and 4 are educated but they are of marriageable age. When the child would go to the school and start taking her education, the respondent Nos. 3 and 4 may not be there to extend their help to the child. On a careful consideration of the record, I am of the opinion that the father cannot be said to be disqualified in any manner as far as the custody is concerned. There is nothing to show that the surroundings of the petitioner''s house are not conducive to the well being of the minor. The petitioner is staying in and ownership apartment having two bedrooms, a hall and a kitchen. It is bigger than the apartment where the maternal grand parents are staying. The petitioner has explained in his affidavit that he is required to attend to his work only in the morning. He can also help his mother in looking after the child.

It is necessary to record at this stage that both the parties are extremely attached to the child. In fact, I found that the child has become almost the prime concern of their life. It is not my intention to belittle the efforts taken by the maternal grand parents in bringing up the child in most difficult time. But now I feel that the custody should go to the father. The apprehension expressed by Mr. Shroff that the sudden change in the residence may prove traumatic to the child does not appear to be justified. I have seen the photographs of the child with the petitioner and his parents. Certainly the petitioner is not stranger to the child and even the grand parents will become friendly within no time. Coming to the decisions cited by Mr. Shroff, I find that in all these decisions the fact that the father was someway disqualified or the finding that the child''s interest will not be protected in the custody of the father has gone in the making of the judgment. There cannot be any dispute about the principle that the welfare of the child is a paramount consideration, but the decision must turn on the facts of each case.

In the result, the petition is made absolute in terms of prayer Clause (a).

["(a) That this Honorable Court be pleased to appoint the petitioner as the guardian of the said minor child named Frashmim and grant the permanent custody of the said minor child to the petitioner."]

The respondents are directed to hand over the custody of Frashmim to the petitioner within four weeks. The respondents will have access to the child on every weekend i.e. the child will remain with them from Saturday 10.00 a.m. to Sunday 3.00 p.m. when the child will be returned to the father.

On the oral request of Mr. Shroff, operation of this judgment is stayed for a period of four weeks. C.C. expedited.