CUSTODY OF CHILD - WELFARE OF THE CHILD
18. It is well settled that while taking a decision
regarding custody or other issues pertaining to a
child, welfare of the child is of paramount
consideration.
This Court in Gaurav Nagpal vs. Sumedha
Nagpal, (2009) 1 SCC 42, had occasion to consider the
parameters while determining the issues of child
custody and visitation rights, entire law on the
subject was reviewed.
This Court referred to English
Law, American Law, the statutory provisions of Guardian
and Wards Act, 1890 and provisions of Hindu Minority
and Guardianship Act, 1956, this Court laid down
following in paragraph Nos. 43, 44, 45, 46 and 51:
“43. The principles in relation to the custody
of a minor child are well settled. In
determining the question as to who should be
given custody of a minor child, the paramount
consideration is the “welfare of the child”
and not rights of the parents under a statute
for the time being in force.
45. In Saraswathibai Shripad Ved v. Shripad
Vasanji Ved, ILR 1941 Bom 455 : AIR 1941 Bom
103; the High Court of Bombay stated;
“....It is not the welfare of the father,
nor the welfare of the mother, that is the
paramount consideration for the Court. It
is the welfare of the minor and of the
minor alone which is the paramount
consideration.....”
(emphasis supplied)
46. In Rosy Jacob v. Jacob A. Chakramakkal,
(1973) 1 SCC 840, this Court held that object
and purpose of the 1890 Act is not merely
physical custody of the minor but due
protection of the rights of ward’s health,
maintenance and education. The power and duty
of the Court under the Act is the welfare of
minor. In considering the question of welfare
of minor, due regard has of course to be given
to the right of the father as natural guardian
but if the custody of the father cannot
promote the welfare of the children, he may be
refused such guardianship.
51. 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 wellbeing. 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. ”
19. Every child has right to proper health and
education and it is the primary duty of the parents to
ensure that child gets proper education. The Courts in
exercise of parens patriae jurisdiction have to decide
such delicate question. It has to consider the welfare
of the child as of paramount importance taking into
consideration other aspects of the matter including the
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rights of parents also. In reference to custody of a
minor, this Court had elaborated certain principles in
Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka,
(1982) 2 SCC 544, where this Court again reiterated
that welfare of the child is of paramount importance.
In paragraph No.17, following was laid down:
“17. The principles of law in relation to the
custody of a minor appear to be wellestablished. It is wellsettled that any
matter concerning a minor, has to be
considered and decided only from the point of
view of the welfare and interest of the minor.
In dealing with a matter concerning a minor,
the Court has a special responsibility and it
is the duty of the Court to consider the
welfare of the minor and to protect the
minor's interest. In considering the question
of custody of a minor, the Court has to be
guided by the only consideration of the
welfare of the minor.”
20. In the above case, the issue of minor girl came for
consideration in the context of custody. The mother,
who was school teacher wanted to send the child to
boarding school, which was opposed by the father, who
wanted to have custody of the minor girl. It is to be
noted that in the said case the minor girl has
expressed her wish not to go to boarding school. This
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Court held that in embittered relationship between the
parents and the attempt of one spouse poisoning the
mind of other spouse has disastrous effect. In
paragraph Nos. 32 to 35 following was laid down:
“32. The effect on the little girl of the
embittered relationship between her parents
and the attempt of the father to poison the
mind of the daughter against her mother and to
alienate her from the mother has been simply
disastrous. The intelligent and sensible girl,
distressed at the acrimony between her
parents, who wanted to spend her time with
each of her parents as she is deeply attached
to both, as recorded by Lentin, J. in his
order dated June 28, 1979, was on the verge of
near nervous breakdown as noted by the
Division Bench in its judgment dated July 31,
1981. The various orders passed in between
which we have set out at length also, indicate
what great mental strain and agony the little
girl had suffered because of the acrimonious
dispute between her parents. During this
period of two years, the girl had been under
home influence, as she had been staying with
her quarrelling parents in terms of the
various orders of the High Court. The little
girl also had been compelled to make her
appearances in Court from time to time. The
facts and circumstances clearly establish that
the effect of home influence on the minor in
the present case has been to reduce a bright,
happy and sensible child to a state of
complete misery; and, the extreme
psychological strain on the sensible mind of
the little girl has caused almost a near
nervous breakdown. When the atmosphere in a
house, vitiated and rendered surcharged with
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tension as a result of bitter squabbles
between husband and wife causes misery and
unhappiness to a child, who has to live in
constant psychological strain in such a broken
home in view of the bitter relationship
between her parents for each of whom she has
great affection, the healthy and normal growth
of the child is bound to be seriously
affected. In the interest and for the welfare
of the child in such a case, the child is
necessarily to be removed from such unhealthy
environment of a broken home surcharged with
tension. In such a case, the proper and best
way of serving the interest and welfare of the
child will be to remove the child from such
atmosphere of acrimony and tension and to put
the child in a place where the embittered
relationship between her parents does not
easily and constantly effect her tender mind.
33. In the facts and circumstances of the
present case the best way to serve the welfare
and interest of the child will be to remove
the child from the unhealthy atmosphere at
home which has caused a very great strain on
her nerves and has certainly affected her
healthy growth, to a place where she can live
a normal healthy life and will have a good
opportunity of proper education and healthy
growth. We note with satisfaction that the
view that we have taken is fully supported by
the report of the Social Welfare Expert. The
report of the Social Welfare Expert, though
not binding on the Court is entitled to
weighty consideration. In the instant case,
the Expert has made a very careful study of
the entire matter and has given a well
reasoned report.
34. Pursuant to the order passed by the
Division Bench of the Bombay High Court the
mother got the child admitted into Kimmins
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Boarding School at Panchgani. By an interim
order passed by this Court in the stay
application in this appeal, the child was
directed to continue her stay in the said
Boarding institution. By the interim order
passed by us on the conclusion of the hearing
we directed that the child should continue
her study in the Boarding School.
35. On a consideration of all the facts and
circumstances of this case and bearing in
mind the paramount consideration of the
welfare of the child, we are of the opinion
that the child's interest and welfare will be
best served by removing her from the
influence of home life and by directing that
she should continue to remain in the Boarding
School. It is not in dispute that Kimmins
Boarding School at Panchgani to which the
child has been admitted is a good
institution.”
21. In the above case, the child was allowed to
continue in the boarding school. We notice one more
decision of this Court in Nutan Gautam vs. Prakash
Gautam, (2019) 4 SCC 734, which was a case where appeal
was filed by mother of a child against the order of the
High Court passed in First Appeal. While decreeing the
divorce petition of the husband ex parte the trial
court had directed the son, the minor boy, to be
admitted in a boarding school at New Delhi. Ex parte
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order passed by the trial court was challenged by the
mother in the High Court, which matter was pending
before the High Court. The High Court by interim order
had permitted the father to take the boy to boarding
school. The said interim order was challenged in this
Court. This Court interacted with the boy and took the
view that in the facts of the case, the child should
not be compelled to go to boarding school. This Court
allowed the child to continue his studies at Global
International School, Shahjahanpur, where he was
earlier studying in the interest of the child. Every
case where issue pertaining to custody of child and
education is decided depends upon the facts of each
case. No hard and fixed formula can be found out which
can be applied to each and every case. Each case has to
be examined in its own facts. We may again refer to the
judgment in Thrity Hoshie Dolikuka (supra), where also
this Court noticed that child has expressed his wishes
not to go to boarding school. This Court in the said
case took the view that the minor is not fit to form an
intelligent preference, which may be taken into
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consideration in deciding her welfare. In paragraph
No.26, following was laid down:
“26. In the facts and circumstances of this
case we are however, not inclined to interview
the minor daughter, as we are satisfied in the
present case that the minor is not fit to form
an intelligent preference which may be taken
into consideration in deciding her welfare. We
have earlier set out in extenso the various
orders passed by the various learned Judges of
the Bombay High Court after interviewing the
minor and the learned Judges have recorded
their impressions in their judgments and
orders. The impressions as recorded by the
learned Judges of the Bombay High Court, go to
indicate that the minor has expressed
different kinds of wishes at different times
under different conditions. It also appears
from the report of the Social Welfare Expert
that these interviews cast a gloom on the
sensitive mind of the tender girl and caused a
lot of strain and depression on her. Torn
between her love for both her parents and the
acrimonious dispute between them resulting in
the minor being dragged from court to court,
we can well appreciate that the sensitive mind
of the minor girl is bound to be sadly
affected. Though the girl is quite bright and
intelligent as recorded by the learned Judges
of the Bombay High Court in their orders after
their interviews with the girl who is of a
tender age and is placed in a very delicate
and embarrasing situation because of the
unfortunate relationship and litigation
between her parents for both of whom she has
great deal of affection, she is not in a
position to express any intelligent preference
which will be conducive to her interest and
welfare. Mature thinking is indeed necessary
in such a situation to decide as to what will
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enure to her benefit and welfare. Any child
who is placed in such an unfortunate position,
can hardly have the capacity to express an
intelligent preference which may require the
Court's consideration to decide what should be
the course to be adopted for the child's
welfare. The letters addressed by the daughter
to her mother from Panchgani and also a letter
addressed by her to her aunt (father's sister)
also go to show that the minor cannot
understand her own mind properly and cannot
form any firm desire. We feel that sending for
the minor and interviewing her in the present
case will not only not serve any useful
purpose but will have the effect of creating
further depression and demoralisation in her
mind.”
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.53885389 Of 2019 (arising out of SLP(C)Nos.1591215913 of 2018) SHEOLI HATI ... APPELLANT(S) VERSUS SOMNATH DAS ... RESPONDENT(S)
