Niranjan Singh Huda and Another vs Tavinder Pal Singh Bhatia and Another

Prashant Kumar Mishra, J.—This appeal u/s 19(1) of the Family Courts Act, 1984 has been preferred by the grandparents of minor child Harmanpreet Kaur @ Khusi. The learned Family Court has rejected their prayer for custody of the said minor child.

Facts of the case, briefly stated, are that the marriage of Smt. Indrajeet Kaur (daughter of the Appellants) was solemnized with Respondent No. 1 Tavinder Pal Singh Bhatia. The minor child Harmanpreet Kaur @ Khusi (hereinafter referred to as ''the child'') was born on 14/03/2004 out of the wedlock. The mother of the child died of burn injuries on 19/07/2005 and for this a criminal case u/s 304(B) and 498-A of Indian Penal Code was registered against the Respondents and after trial they have been convicted and sentenced to undergo RI for seven years. Respondent No. 1 who is the father of the child has been released on bail by an order passed by this Court in the criminal appeal on 31/07/2007.

The Appellants are the maternal grandparents (Nana-Nani) of the child. They are resident of Khandwa in the State of M.P. They preferred the subject application under Sections 7 and 10 of the Guardians and Wards Act, 1890 (hereinafter referred to as ''the Act'') 1890 on the submission that the Respondent No. 1 is in custody and during her life time their deceased daughter had desired that they should take care of the child. Appellant No. 1 is a retired officer from the department of revenue and is able to maintain the child. It was stated in the application that the child is in the custody of Respondent No. 2 Pritam Singh Sahgel.

The Respondents submitted their reply to the application and stated that he has been released on bail by the Hon''ble High Court and he being the natural guardian/father of the child is entitled to maintain his child and the application preferred by the Appellants deserves to be rejected being not maintainable.

The learned Family Court has rejected the application after finding that the welfare of the child demands that she should remain with her father who is taking care of her and is presently studying in the Maharshi Vidya Mandir School. It was observed that the Appellants are aged persons and that Appellant No. 1 has admitted that he is suffering from high blood pressure.

Learned Counsel for the Appellants has argued that in view of the fact that the Respondent No. 1 has been convicted and sentenced to undergo RI for seven years, the custody of the child should be handed over to the Appellants because in the event the conviction is maintained by the Hon''ble High Court the child will be left unattended and may not be properly taken care of. On the other hand, learned Counsel for the Respondent has submitted that Respondent No. 1 being the natural guardian/father of the child is fully entitled in law to maintain his child and in any case when the father is alive and is taking care of the child, the custody cannot be handed over to the maternal grandparents who are old aged.

In course of hearing this Court heard the Appellants and also interacted with the girl child who is presently aged about seven years. When her wishes were asked, she desired that she wishes to live with her lather who is extremely attached to her and is taking proper care of her.

Law relating to principles governing the custody of minor child has been considered by the Hon''ble Supreme Court in series of judgments, few of which are considered herein under:

The Apex Court in case of Sumedha Nagpal Vs. State of Delhi and Others, while interpreting the proviso to Section 6(a) of the Act of 1956, held that decision on the question of custody should be made bearing in mind the welfare of the child -It cannot be made simply on the basis of right of the parties under the law, and observed in para 4 and 5 of the judgment as under-

Even at this stage, Shri D.D. Thakur, the learned Counsel for the Petitioner laid great emphasis that we should not shirk our task at least with respect to the limited question of ordering restoration of the custody of the minor child to the mother. He submitted that though Section 6 of the Act recognises guardianship of the minor child with both the parents, exclusive right of the mother is recognised in respect of the custody of a minor child below five years. This legislative recognition of the maternal instinct should be honoured by us by treating the custody of the child with the father as illegal and the custody should be handed over to the mother pending the proceedings suggested by us earlier in the course of this order.

In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind. We are conscious of the emphasis laid by the learned Counsel for the Petitioner that the lap of a mother is the natural cradle where the safety and welfare of the child can be assured and there is No. substitute for the same, but still we feel that at this stage of the proceedings it would not be appropriate for us to interfere in the matter and leave all matters arising in the case to be decided by an appropriate forum irrespective of whatever we have stated in the course of this order. Even though we have dealt with the contentions raised by Shri D.D. Thakur as to grant of interim custody to the Petitioner, we should not be understood as having held that a petition would lie under Article 32 for grant of custody of a minor child; we refrain from examining or deciding the same.

The Hon''ble Apex Court in the case of Elizabeth Dinshaw (Smt.) v. Arvand M. Dinshaw and Anr. reported in 1987 (1) SCC 42 while dealing with Section 7 and 17 of the Act of 1890 has held that when a question arises before a court pertaining to custody of a minor child, the matter has to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

The Hon''ble Apex Court in case of Smt. Anjali Kapoor Vs. Rajiv Baijal, relying upon the two judgments referred to hereinabove has held in para 26 that "ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the Appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the Appellant to retain the custody of the child.

The Supreme Court in case of Mohan Kumar Rayana Vs. Komal Mohan Rayana, , Gaurav Nagpal Vs. Sumedha Nagpal, , Athar Hussain Vs. Syed Siraj Ahmed and Others, have also held that welfare of the child is the sole and single yardstick to assess comparative merit of the parties contesting for guardianship.

The Hon''ble Supreme Court in case of Mausami Moitra Ganguli Vs. Jayant Ganguli, has observed in para 19 to 23 as under-

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 a 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.

The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, No. doubt true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. 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 child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

In Rosy Jacob Vs. Jacob A. Chakramakkal, a three-Judge Bench of this Court in a rather curt language had observed that:

...The children are not mere chattels: nor are they mere playthings 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.

In Halsbury''s Laws of England (4th Edn., Vol. 13) the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:

Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.

Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is No. ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child''s talent and personality. As noted above, the Appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier, she was teaching in some school at Calcutta. Admittedly she is living all alone. Except for a very short duration when he was with the Appellant, Master Satyajeet has been living and studying in Allahabad in a good school and is stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad.

In Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, , the Supreme Court has held that Section 6 of the Hindu Minority and Guardianship Act 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.

In Nil Ratan Kundu and Another Vs. Abhijit Kundu, the Hon''ble Supreme Court has held in para 52, 57 and 58 of its judgment as under:

Principles governing custody of minor children.

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 humane 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. 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.

In our opinion, in such cases, it is not the ''negative test'' that the father is not ''unfit'' or disqualified to have custody of his son/daughter that is relevant but the ''positive test'' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of a minor in favour of father, the mother or any other guardian.

Though this Court in Rosy Jacob (supra) held that children are not mere chattels nor toys, the trial Court directed handing over custody of Antariksh ''immediately'' by removing him from the custody of his maternal grand-parents. Similarly, the High Court, which had stayed the order of the trial Court during the pendency of appeal, ordered handing over Antariksh to his father within twenty four hours positively. We may only state that a child is not ''property'' or ''commodity''. 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.

From the law laid down by the Hon''ble Supreme Court in the above referred judgments, it would be clear that while deciding the question regarding custody of minor child, the paramount consideration is the welfare of the minor and that alone should weigh with the Court while deciding the question and further that the wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given.

In course of interaction with the child we have gathered that the child is quite intelligent and was responding to the discussion quite frankly. She has desired, in No. uncertain terms, that she is happy with her father and that she has absolutely No. problem in her well being or the studies while she remains with her father. In fact the child fails to recognize her grandparents as she has never seen or lived or interacted with them. She is presently studying in class-2 in a reputed school at Bilaspur.

In view of the above, this Court is of the considered opinion that in the present case, the welfare of the child would be best protected and it warrants that she should remain with her father. The fact that the father has been convicted and presently his appeal is pending before High Court would not dis-entitle him to keep his daughter with him, if otherwise the welfare of the daughter lies in residing with her father. Here, it can not be forgotten that the Appellants are aged and the child has never resided with them in the past.

We do not find any substance in the appeal as the learned Family Court has not committed any error in rejecting the application presented by the Appellants under Sections 6 and 7 of the Act, 1890.

Consequently, the appeal fails and is hereby dismissed.