N. Nirmala vs Nelson Jayakumar

David Christian, J.—Petition filed under Sections 3 and 7 to 10 of the Guardian and Wards Act 1890 in respect of the minor N. Asha. The petition is filed by the mother of the minor namely Nirmala as against the respondent who is the father of the minor and she has made the following allegations.

The petitioner and the respondent are all residents of Madras and they are Indian Christians. Their marriage took place on 9.10.1985 at Madras as per Christian rites and ceremonies. The petitioner is a graduate in economics and also qualified in Typewriting and shorthand. The petitioner is working in Electronics - Corporation of Tamil Nadu commonly known as ELCOT which is a State Government undertaking. At the time of her marriage the respondent was employed as an Engineer in M/s. Hindustan Motors Ltd. Thiruvallur Madras. After the marriage, both the petitioner and the respondent resided in the house of the respondent along with his parents at Vadapalani. During their stay in the house of in-laws, the petitioner was ill treated and down was demanded from her by the in-laws. In 1987, the petitioner and respondent started living separately in various places within the city Minor Asha was born on 21-7-1986. The father-in-law of the petitioner namely the father of the respondent is a retired Inspector of Police and another sister of the respondent is working as Sub Inspectress in the city police. The respondent got himself enrolled as a Honorary Traffic Warden in 1990 and he resigned the job in Hindustan Motors to take private business. The petitioner and the respondent were residing along with the minor child in Kellys. The minor was studying in Bain School upto 1st standard. It was convenient for the petitioner to reside there because her parents were residing nearby and the minor child can be left in their custody after school hours till the respondent returned from the office. The respondent neglected to look after the family and he used to come late every day The respondent used to abuse the petitioner unnecessarily and the petitioner was subjected to mental torture. The respondent shifted their residence to Ambattur which is nearer to the office of the respondent and it was very inconvenient for the petitioner and the minor to go to their office and school. Minor Asha was admitted in Spartan school at Anna Nagar where she studied in the 2nd standard. Because of the distance between the school and the house and also office of the petitioner, she has to avail long leave on many occasions only with a view to attend to her minor daughter. Again, the respondent shifted their residence to Mugappair in 1993-94. The minor girl was transferred and put in Jessie Moses School, Anna Nagar, where she studied in third class from July, 1993. The petitioner could not get leave often and her parents help could not be availed because the house was situated far away from the petitioner''s house from Kellys. The petitioner therefore resigned her job in September, 1993 and she was taking care of the minor thereafter. While so, in November, 1993 the respondent deserted the petitioner and the minor daughter and left the house, went and joined his parents'' house at Vadapalani. For two months the petitioner and the minor daughter were living alone in the house at Mugappair and thereafter the petitioner along with the minor decided to reside with her parents in January, 1994 at Anna Nagar. The petitioner is maintaining herself and also looking after the minor from out of her savings made during the time of her employment and also out of her income she gets from tailoring work. The petitioner filed O.P. No. 182/1994 before this Court for appointing her as guardian but subsequently withdrew the same after the minor was returned to her, The respondent filed O.P.No. 388 of 1994 which is now pending before the I-Additional Family Court praying for divorce from the petitioner alleging falsely that the petitioner and co-respondent therein are living in adultery. It is alleged that the petitioner has left him even in the year, 1991 which is a false statement. The respondent filed the petition for divorce making false allegations with a view to get married for the second time. Throughout the minor has been attended by the mother, namely the petitioner and she has been looking after her education right from L.K.G. to 5th standard. The minor was admitted to Valliammal School in Anna Nagar in June, 1994. While so, the respondent took away the minor in November, 1994. The petitioner gave a complaint to the police and the respondent agreed to allow the minor to stay with the petitioner for five days in a week and the respondent was allowed to take the child for two days during the week ends. The petitioner got her admitted to 5th standard in Spartan School in June, 1995, Bus the minor was taken away from the school by the respondent on 18.6.1995. He stopped her from going to school and the petitioner filed H.C.O.P. No. 1198 of 1995 which was dismissed. The minor was made to say before the High Court in the said proceedings that she is not willing to go with the petitioner namely the mother. Minor is aged only 9 years and she has been tutored to say so and she is not in a position to express her preference in an independent manner. The petitioner filed SLP against the dismissal of H.C.O.P. in Supreme Court on 21.11.1995. From 18.6.1995 the respondent has refused even to allow this petitioner to see her minor daughter. The minor''s mind has been poisoned by the respondent and their parents and sisters. The minor is to attain puberty and she needed the love and affection of her mother. The respondent is doing business besides being employed as a Honorary Traffic Warden. He explanation is given as to why the petition was withdrawn, if really she wanted the custody of the child after the child was taken away by the father who went away to reside with his parents. The mother filed H.C.O.P. 182/1994 before the High Court, Madras and Ex.P-9 is the copy of the said petition which is dated 28.3.1994. Here also the petitioner has no real grievance against her husband and she has only complained about the husband joining as Traffic Warden and coming late to the house. She would falsely allege mat the child was forcibly taken away and being confined against her wish. The alleged petition ''was also dismissed by this Court. It is seen mat during the pendency of the H.C.O.P. two Judges of this High Court have sent for the minor child and ascertained her wishes. This became necessary because it was alleged by the petitioner, the mother, mat the chili has been forcibly taken away from her and being kept under the custody of her father, But the child when brought before the Judges has clearly stated that she was very happy to live with her father and she expressed her desire to continue to reside with him and also stated that she did not like to go with the mother, namely, the petitioner. On another occasion also, the wishes of the minor child have been ascertained by the Family Court, before which also the child expressed the same desire to reside with the father rather than the mother. No doubt the child was aged only 9 and now she has completed 11 years. The child was; directed to be produced before me and I also had an occasion to ascertain from her about her preference and wish. The child stated that she is happy to reside with her father and she is not willing to go with her mother. When questioned, the child also stated that right from her infant stage it is her father who was looking after her and who was bestowing love and affection, and her mother did not pay any attention to her even while they were all residing together. While the child his expressed her desire as such, in all the three forums, the petitioner would say mat the wishes of the child should be ignored on the ground that the child has been brought to Court on all these occasions after being tutored by her father and it is not the expression of her true desire. It is also argued on behalf of the petitioner that the child is too young to intelligently express her preference between her father and mother. I am not inclined to accept the suggestion of the petitioner that the child has been tutored to say all these things before the Courts. It is not easy to make a child or tutor her to say something against her own mother. If mother has been looking after the child with love and affection due of a mother, I do not think, that it will be easy for anybody much less the father to tutor her against the mother. No doubt the preference showed by the minor is not the only criterion to decide with regard to the guardianship or custody of the child. But it must be taken into consideration as to whether the child if separated from the present surroundings will suffer, in case she is placed in new surroundings.

It is now well established proposition in law that the paramount consideration for appointment of guardian for the minor is not right of the parties fighting for custody and guardianship but it is the welfare and future of the minor which has to be given the paramount consideration in deciding the question.

The petitioner also has been claiming that right from the time the child was admitted in Kindergarden School and till now she has been responsible for seeking admission in various schools and the respondent has been the cause for frequent dislocation and shifting of schools for the child. In support of her claim she has also produced certain records like admission to school, payment of fee, etc., to show that she has been looking after the interest of the child''s education. But these records are not sufficient to hold that she was responsible or she has exclusively taken interest for the minor''s education. In fact she herself has admitted in cross-examination that her husband has got influence with the concerned authorities of various schools where the child has been studying in the past because he has been visiting those schools in his capacity as a honorary Traffic Training Officer, taking classes for school children, teaching them the rules of Traffic regulations. A person who has voluntarily taken such a job and who has chosen to spend lot of time with children, naturally would have taken very much interest in his own daughter''s education and it was he who was taking care of the child''s education right for all these years. Even the petitioner is not able to point out any flaw or defect in the character of the respondent viz., her husband and therefore, taking into consideration the view expressed by the minor herself it is only natural to conclude that the minor is very happy in the present circumstances wherein her needs and requirements are attended very well by the father and he has also got old grand parents besides an Aunt who are also living in the same house. The child is young, brought up by the father nicely and the aunt''s children also can give company for the minor child. The minor child is looking very cheerful and charming. The minor is also happy and making nice progress in her studies. This fact is not questioned, she has been separated from her mother at least for the past more than three years. Her education and well being have not been affected in any way.

It is also submitted on behalf of the father that the mother is unfit to be the guardian for the minor to be entrusted the custody of her child because of her activities. She is said to be living with one Asaai Thambi who has been made as co-respondent in the petition filed by the husband for divorce. As already stated, this is not the proper forum to decide about such allegations. In this petition we are concerned with the custody of the minor. But the fact remains that the petitioner is residing away from her husband and presently she is also not employed. Admittedly the father is able to satisfy the needs and requirements of the minor and the minor is also happy in his company. The minor is 11 years old and has expressed her preference to live with the father than with the mother. The reason given by the minor is that her father has been looking after her, bestowing love and affection all these years rather man the mother. The mother has found it impossible to live with their in-laws. Wife persuaded the husband to come and live separately and even thereafter she was not able to live peacefully with the husband and child. She complains to the Court falsely that the child has been taken away by force from her and a petition filed by her has been dismissed by the Writ Court. The claim of the petitioner that the child has been tutored to say something against her has been disbelieved by the Bench of this Court in H.C.O.P filed by the mother against the father. The Family Court also examined the child and the child has preferred to stay with the father rather than with the mother. The child is well provided by the father and she is also making good progress in her studies and she is studying in a decent school where her academic performance is above average and good.

Another reason advanced by the respondent against the petitioner''s claim is that the petitioner belongs to a peculiar group among the Christians and she is a member of an association or a cult group known as Jehova Witnesses, The learned counsel appearing for the petitioner has cited rulings where disqualification for admission in respect of the children of members of said organisation was the subject matter and the Supreme Court has decided that refusal to salute the National Flag and refusal to sing the National Anthem by the Jehova Witnesses group cannot be made a ground for refusing admission to them in the school. It was held that it is a particular faith and in view of the permission to practise religion of one''s choice guaranteed under our Constitution such a prohibition was found to be unlawful. This does not mean that the Court has approved the practice of such religion. We are not also concerned in this case with regard to the correctness or otherwise of the faith of the said group. But from the answer elicited from the petitioner during her examination it is seen that Jehova Witnesses do not celebrate Christmas and they do not worship anybody except Jehova. Jehova means redeemer according to the original Christian faith. Christ was born as Jehova to redeem the people from their sins. But Jehova Witnesses adopt some rituals and do not belong to the established Christian church. The petitioner and the respondent originally were members of the church of South India and the respondent has been attending church regularly. The mother now belong to the particular group and she does not encourage the child to go to the Church of her choice even on Sundays and she herself was not a regular Church goers. So, the religious atmosphere in the house of the petitioner is also not conducive to the normal development of the child. Apart from this I am not inclined to express any opinion with regard to the faith claimed by the petitioner as a Member of Jehova Witnesses. But it appears that religious atmosphere in the house of the petitioner will not be conducive for the proper spiritual growth of the minor.

12A. The minor has been more attached to the father and has been left with the father for the past four years at least. The petitioner wants us to infer that her education has suffered because of frequent shifting of schools. She would point out that there was a break in the studies of the minor when she has taken away from Valliammal School situated in Anna Nagar. But it has been elicited from respondent that even though the child was not able to attend school for few months, she was given private coaching for few months and was admitted in the same academic year and she has not lost any academic year in her educational career. So, it is not as if the mayor''s educational career has suffered because she was left in the father''s custody. The father has taken more interest in the child and has been admitting her in school which is naturally situated close to the house where they are residing. It is also proved that even though the respondent is having his own business lie is bestowing enough time to her daughter namely the minor.

The petitioner has adduced evidence to show that she has been absenting herself frequently while she was employed, only to take care of the minor at home. But I do not believe this because absence from the office was not required because minor herself would be away during the day time attending to school and it is not the case of the petitioner that she has been suffering from any illness for such a long period. If she has been frequently absenting she has been pursuing her own interest and definitely not the interest of the minor. It is also significant that she resigned the job in 1993 not because her husband wanted her to resign and not because her presence was required at home to look after her. Anyhow presently, the petitioner is living separately from her husband for no justifiable cause or reason and it is difficult for her to maintain the child and provide her with necessities. The child also is more happy in the present situation where she is being brought up by the father and grandparents. Taking into consideration the interest and welfare of the minor it is better that she is allowed to continue to reside with the father who is the natural and legal guardian. If the minor is of tender age below 6, one can understand the plea made by the mother in respect of the custody of the child. But here is the case where minor aged is 11 and she is a grown up child and studying well in the school and necessary requirements are being met by the respondent in a satisfactory manner. Moreover, if the girl is shifted from the present surroundings and placed in the custody of the petitioner, it will definitely cause more injury on her mind and on her personality.

13A. In Rosy Jacob Vs. Jacob A. Chakramakkal, it was held that;

"The father''s fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and head of the family but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education, the family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary, the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. 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 modem 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 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."

So, the question of guardianship has to be viewed from the point of view of the children''s interest, their health, maintenance and education. So, even in this ruling, the Supreme Court has only held that the primary consideration is the minor''s welfare and interest and not assertion of rights of either spouse. That was the case where on the facts available, the Supreme Court decided the custody and guardianship in favour of the mother'' who was better placed to cater to the needs of the children and who was able to provide better health and educational facilities to the children than the father.

The learned counsel for the petitioner has drawn my attention to the ruling reported in Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka, where it was held by the Supreme Court that the best way to serve the welfare and interest of the girl aged about 11 years would be to remove the child from the unhealthy atmosphere at home which caused a very great strain on her nerves and had certainly, affected her health growth, to the Boarding School where she could live a normal healthy life and would have a good opportunity of proper education and healthy growth.

It was also held in this case mat minor being aged only 11, she was not fit to form an independent preference and therefore the Court thought it fit not to question the minor daughter with regard to her preference between the parties.

In Chandrakala Menon (Mrs) and Another Vs. Vipin Menon (Capt.) and Another, the Supreme Court has ordered the custody of the minor children in favour of the mother who was residing in USA along with her parents rather than the husband, who has since become divorced taking into consideration the fact that both the families are well to do families and in the interest and the welfare of the minor girl, shall be left in the custody of the mother in U.S.A. The Court has also conceded the right of the father by directing the mother to permit the child to visit India at least once in a year and see her father.

In Smt. Mohini Vs. Virender Kumar, the Supreme Court has held mat the mother was entitled to guardianship in the matter of custody of child of 11 years age. But this also was only after considering that the mother''s interest will promote the interest and welfare of the minor which alone was considered as a paramount consideration.

In Mary Vanitha Vs. Babu Royan, the custody was granted in favour of the mother but that was the case where the minors were aged 5 and 3 years and the minors have been forcibly removed by the father: In that case also the interest and welfare of the minors were taken into consideration which finally decided the matter no doubt in favour of the mother, considering the tender age of the minors concerned. That was also a case where the father has questioned the conduct of the mother and on account of that it was argued that the mother is disqualified to be the guardian of the minors. That was the case where mere allegation of adultery was, made and this was not considered to be the ground to reject the claim of the mother.

In Umamaheswari v. V.Sekar (AIR 1992 Madras.272) this Court has held as follows:-

"The mother''s position is regarded as of much more importance in modem times than it was in former days. The paramount consideration is the interest of the child rather than the rights of the parents. Human nature is much the same all the World over and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find any adequate substitute for her for the custody of a child offender years."

Number of Rulings also have been cited on the side of the petitioner citing various cases where custody and guardianship was granted in favour of mother in preference to the claim of the father. But in all those cases it was nevertheless held that the paramount consideration is the interest and welfare of the minor and not the rights of parties. In all cases where the minors are found to be of tender age the Court has preferred to order custody in favour of the mother if she is otherwise qualified to meet the requirements of the minors in respect of their health, education and maintenance. So the underlying principle in all these decided cases is the consideration of the interest and welfare of the minor and not going strictly by the rights of the parties making rival claims. So far as this case is concerned, it is clearly established that the petitioner namely the mother was not able to adjust herself with family life and even after successfully persuading her husband to live separately from her in-laws, she did not live happily with the husband and trying to find defects where they do not exist and had lived independently for the past many years. The father seems to have taken more care in the welfare of the child and the fact remains that the child is more attached to the father than the mother. The child has stated in the past three years in three different forums that she would prefer to live with the father rather than the mother for the simple reason that from her infant stage it was the father who was taking interest in her and showering love and affection for her and the mother did not find time to bestow her love and affection for her all these years. The child is now 11 years old and studying in the 6th standard in a very good School and she is being fed well and given all comforts and necessities and the father has got sufficient means to look after her and maintain her in sufficiently good standard of living. Even according to the wife his present income is between Rs. 8,000 to Rs. 10,000/- and he is living with his parents who are no doubt old but still capable of bestowing love and affection for the minor child who has been neglected by her mother, namely die petitioner. Besides, along with the father his sister also is living with her husband and children and the girl is in nice company. So, the girl''s health, education and maintenance is in proper hands than if she is placed under the custody of the mother who is presently not employed and who does not have enough resources to give a decent education to the girl. Considering all these facts I think that the welfare and interest of the minor requires that she must be allowed to continue in the custody and guardianship of the father rather than the mother.

No doubt, the mother is definitely entitled to visitation rights. Both of them are living in Madras and the girl is studying in 6th standard and she has holidays on Saturdays and Sundays, Sunday being Sabbath she used to go to the church along with her father. She has to be brought up in the conventional religious atmosphere until she can make her independent preference for any faith of her own choice. Therefore, on Sundays she cannot be left in the custody of the mother who is no doubt not a regular church goers .

The father is directed to leave the child every Saturday in the company of the mother. The mother is also entitled to keep the child in her custody for five days during Christmas vacation and for 15 days in Summer vacation. The petitioner is entitled to this limited rights, but she is not entitled for custody or guardianship of the minor. In the result, petition is dismissed however without costs.