REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1553 OF 2017
(ARISING OUT OF SLP (CRL.) NO. 1867 OF 2016)
PURVI MUKESH GADA .....APPELLANT(S)
VERSUS
MUKESH POPATLAL GADA & ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
It is an unfortunate case where the parties, who are wife
and husband, are having a bitter and acrimonious fight over the
custody of their children. Such custody battles are always
regrettable, not only for the spouses who resort to this kind of
litigation, which is the offshoot of matrimonial discord and results
in their separation from each other, but also for their child/children
who become the subject matter of this kind of dispute. Failure of
marriage generally leads to disputes of varied nature, either in the
form of divorce or enforcement of conjugal rights or maintenance
etc. and even criminal cases in the form of proceedings under
Criminal Appeal No. of 2017 Page 1 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
Section 498A of the Code of Criminal Procedure, 1973 and so on.
However, in those cases where their togetherness as spouses
had resulted in procreation of children, the war is extended by
laying respective claims on the custody of those children as well.
These minor children, for their proper upbringing, need the
company of both the parents – mother as well as the father, for
financial reasons, security reasons, psychological reasons, etc.
They need the love of both their parents. Not only separation of
their parents from each other deprives these children 24/7
company of both the parents, when it results in legal battle of
custody in the courts, the situation becomes more traumatic for
these children because of various obvious reasons. That is why
such cases which seriously impact these children are the most
unfortunate.
2) In the instant case, marriage between the parties as per Hindu
rites and ceremonies was solemnised way back in November
1997. They lived together for number of years. Their first child, a
boy named Taney, was born in the year 2000 and second child, a
daughter named Varenya, was born in the year 2004. The
appellant herein left the matrimonial home on February 18, 2013.
Thus, they were together for more than fifteen years when the
Criminal Appeal No. of 2017 Page 2 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
desertion took place, though as per the allegations of the
appellant she had suffered mental and physical torture at the
hands of the respondent since the beginning of the marriage, but
for the sake and well being of the children and also because of
her financial dependency on the respondent she continued to live
with the respondent. These allegations of maltreatment of the
appellant are denied by the respondent. In any case, that is not
the crux of the matter.
3) It so happened that when the appellant left her matrimonial home
in Pune and came to her parents house in Mumbai, children
remained in the custody of the respondent. Tanay was not at
home as he was studying in a boarding school at Coimbatore at
that time. Insofar as Varenya is concerned, the allegation of the
appellant is that it is the respondent who did not allow the
appellant to take her along to Mumbai. Some attempts were
made thereafter for settlement of their disputes, which did not
bear any results. On September 18, 2014, the appellant filed a
domestic violence case in the 38th Court of Additional ACMM,
Ballard Estate, Mumbai on the ground of gross mental and
physical cruelty, including verbal and physical abuse and occult
practices. Three months after filing the said case, the appellant
Criminal Appeal No. of 2017 Page 3 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
moved an application therein praying for access to her minor
children during Christmas vacation, which was allowed to be
availed of in the respondent’s house in Pune.
4) In February 2015, Varenya was also admitted in a boarding
school by the respondent. The appellant, at that juncture, moved
an application for interim custody of the minor children as well as
for maintenance. However, custody was not allowed on the
ground that children were studying and it would not be proper to
give custody during the midst of their academic year. At the same
time, interim maintenance @ Rs.30,000/- per month was directed
to be given to the appellant. In May 2015, when the summer
vacations were approaching, the appellant filed an application
praying for custody of children for half of the vacations. Though
this application was still pending and no orders passed thereon,
the respondent himself handed over the custody of the children to
the appellant on June 17, 2015. There are divergent stands of
the parties behind such a move on the part of respondent in
voluntarily giving custody of the children to the appellant. As per
the respondent, even when there was no order of the Court, as a
goodwill gesture, he gave custody of the children to the mother
for a period of three days with clear understanding that custody of
Criminal Appeal No. of 2017 Page 4 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the children would be handed back to the appellant after three
days. On the other hand, the appellant claims that the
respondent entrusted the children to her even when without any
order of the Court, compelled by the circumstance inasmuch as
Tanay had miserably failed in his Grade IX examinations while
studying in the boarding school at Coimbatore and the
respondent wanted the appellant to give coaching to him so that
he could reappear and pass the examination in order to get
promoted to Grade X without wasting an academic year.
5) The children were not given back to the respondent after the
expiry of three days. Here again both the parties have their own
version. According to the appellant, the children themselves
refused to go back to the respondent. On the other hand, the
respondent maintains that it is the appellant whose intentions
became bad and, thereby, she refused to handover the custody of
the children to him. Be that as it may, the respondent filed an
application before the Court of Additional ACMM for restoration of
custody of the children. The learned Additional ACMM called
both the children in his Chambers and interacted with them.
Thereafter, he passed the orders dated July 01, 2015 vide which
custody of the children was given to the appellant, rejecting the
Criminal Appeal No. of 2017 Page 5 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
request for restoration of their custody to the respondent. Appeal
was filed against this order in the Sessions Court, which was also
dismissed vide judgment dated August 06, 2016. Orders of the
learned ACMM dated July 01, 2015 and that of the Sessions
Court dated August 06, 2015, were challenged by the respondent
in the form of writ petition filed in the High Court of Bombay.
Disposing of this writ petition vide judgment dated February 17,
2016, the High Court has directed that custody of the children be
restored with the respondent. It is this order which is the subject
matter of challenge in the instant appeal.
6) Before stating the reasons which prevailed with the High Court in
directing the custody of the children to the respondent, it is
imperative to take note of certain proceedings before the High
Court during the pendency of the writ petition.
7) Vide order dated January 29, 2015, the High Court directed day
access on September 21 and 24, 2015. Again vide order dated
November 11, 2015, overnight access for the coming weekend
was accorded to the respondent. Identical overnight access was
given by the High Court vide order dated November 23, 2015.
However, the respondent could not avail the benefit of these
orders. According to the respondent, the appellant had violated
Criminal Appeal No. of 2017 Page 6 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
these orders, whereas the appellant has pleaded that on
September 24, 2015 the respondent himself did not come to have
the access of the children and insofar as order granting overnight
access during weekends is concerned, the explanation of the
appellant is that it is the children who refused to go to their father
as they were petrified and, therefore, themselves took such a
decision.
8) On December 11, 2015, the respondent was given seven days
access during Christmas vacation with Counsellor’s help. For
carrying out this order, the trial court called the children on
December 23, 2015 where the respondent was also called.
Again, as per the appellant’s version, the children, after remaining
with the respondent for forty five minutes alone, ultimately told
him that they did not wish to go with him. The respondent was to
come to pick the children on December 25, 2015 and as per the
appellant, he did not come to pick the children.
9) The respondent maintained that on all the aforesaid occasions it
is the appellant who had refused to handover the custody to him
and had, thus, violated the orders of the High Court. Accordingly,
he filed an affidavit in the High Court for initiating contempt
proceedings against the appellant. The appellant filed reply
Criminal Appeal No. of 2017 Page 7 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
affidavit thereto refuting the allegations. Matter was finally heard
and culminated in the judgment dated February 17, 2016.
10) With this, we come to the reasons which have weighed with
the High Court in directing the custody of the children to be given
to their father, namely, the respondent. After perusing the
impugned judgment, these are summarised as below:
(i) Orders dated December 28, 2014 and March 04, 2015 were
passed by the Additional ACMM, confirming the custody of
the children with the respondent-father inasmuch as by
these orders prayer for giving interim custody of children to
the appellant-wife was rejected. Instead, the appellant was
only given limited access during vacation to meet the
children in the school at Pune whenever she desired.
(ii) Even though the appellant had moved application dated
May 27, 2015 seeking access to the children during
vacation, which was from June 13, 2015 to August 09,
2015, and no orders were passed in the said application, as
per the respondent, as a humanitarian gesture and without
there being any legal obligation or court directions, he went
to the appellant’s residence at Mumbai on June 17, 2015
and left the children with the appellant with a clear
Criminal Appeal No. of 2017 Page 8 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
understanding that he would pick them up by June 19,
2015. The High Court has noted the stand of the appellant
as well, but has mentioned that as per the respondent’s
case when he went to take the custody of the children on
June 19, 2015, the appellant refused to restore the custody.
The High Court has given weightage to the fact that on
June 17, 2015, the respondent had placed the children in
the custody of the appellant even when there was no court
order or legal obligation.
(iii) The High Court wanted to interact with the children in order
to ascertain their wishes as well as to determine as to which
course of action is appropriate in the welfare of the children.
However, before doing so, the High Court deemed it
appropriate to grant weekend access to the respondent.
For this, directions were given (which have already been
taken note of). As per the High Court, prima facie it
appeared that the appellant was responsible for
non-compliance of those orders and even if it is to be
believed that the children did not show their unwillingness to
go to their father, it indicates the extent of influence exerted
by the mother upon her minor children.
(iv) As per the High Court, in the face of two detailed orders
Criminal Appeal No. of 2017 Page 9 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
dated December 28, 2014 and March 04, 2015 passed by
the Additional ACMM declining custody of minor children to
the appellant and allowing the respondent to retain their
custody, there was no reason not to restore the custody to
the respondent on June 19, 2015. It has observed that
subsequent orders of Additional ACMM declining to give the
custody, which is upheld by the Sessions Court, are without
application of mind.
(v) The High Court has discussed the law on custody of
children and explained the ‘welfare principle’, which is the
paramount consideration while deciding custody matters is
to see where the welfare of children lies. Applying this
principle, the direction is given to restore the custody of the
children to the respondent after the end of academic term in
April or May 2016.
11) We may say at the outset that though the ‘welfare principle’
is correctly enunciated and explained in the impugned judgment,
no reasons are given as to how this principle weighed, on the
facts and circumstances of this case, in favour of the respondent.
Instead two main reasons which have influenced the High Court
are: (i) earlier detailed orders are passed by the Additional ACMM
Criminal Appeal No. of 2017 Page 10 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
allowing the respondent to retain the custody; and (ii) the
appellant here had not given access of children to the respondent
even during weekend, in spite of orders passed by the High
Court.
12) After hearing the counsel for the parties at length, we are of
the opinion that the matter is not dealt with by the High Court in
right perspective. Before supporting these comments with our
reasons, it would be apposite to take note of certain
developments from June 17, 2015, the date on which the
respondent had himself handed over the children to the appellant,
till the passing of the orders by the High Court. It is also
necessary to state the events which took place during the
pendency of these proceedings.
13) Whether the respondent had handed over the custody of
the children to the appellant on a humanitarian gesture or not,
fact which is not in dispute is that Tanay had failed in his Grade IX
examinations and he was to reappear for the same. It is also a
fact that it is the guidance and tuition of the appellant that Tanay
passed the examinations on reappearance and could be
promoted to Grade X. Another fact which needs to be noted here
is that when the appellant left the matrimonial home, Tanay was
Criminal Appeal No. of 2017 Page 11 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
not residing with the parties. He was admitted in a boarding
school in Coimbatore, a far-away place from Pune. No doubt, the
respondent claims that intention in admitting Tanay in a boarding
school in Coimbatore was that he should get best education as
the school in which he was admitted is a prestigious educational
institution. At the same time, it is also a fact that Tanay was not in
the physical company of his father on day-to-day basis. It is also
a harsh reality that he was not doing well in studies during the
period his legal custody was entrusted to the respondent. His
overall performance in most of the subjects was dismal and he
had even failed in Grade IX. At that stage when, within few days,
there was a re-examination, handing over Tanay, along with
Varenya, to the appellant, without even any court order, lends
credence to the version of the appellant that the purpose was to
give appropriate tuition to Tanay by the appellant so that his
academic year is not wasted. Another fact which needs to be
emphasised at this stage is that though the custody of Varenya
was also with the respondent and request of the appellant to
hand over interim custody of the children did not prevail with the
Additional ACMM who rejected this request vide orders dated
December 28, 2014 and March 04, 2015, even Varenya was
admitted in a boarding school by the respondent thereafter. This
Criminal Appeal No. of 2017 Page 12 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
fact also gives some credence to the version of the appellant that
because of his pre-occupation in the business or otherwise, the
respondent was not in a position to take personal care of the
children and, therefore, he put both of the children in the boarding
schools.
14) After the children came to the appellant, they were admitted
in a school in Mumbai. It is pertinent to note that Tanay’s
academic performance has improved significantly. He is getting
very high grades in the examinations. In fact, academic
performance of Varenya has also gone up. This factor, though
noted by the High Court, has been lightly brushed aside with the
observations that if the children were not doing well earlier, blame
cannot be put on the respondent as it could be the result of
disputes between the parents. In the process what is ignored is
that in spite of the said dispute still subsisting, the academic
performance of the children, while in the custody of their mother,
has gone up tremendously.
15) When the special leave petition had come up for hearing, on
the first day itself the respondent had appeared through his
counsel as a caveator. Children were also brought to the Court
and this Court interacted with them. While issuing the notice,
Criminal Appeal No. of 2017 Page 13 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
based on the interaction with the children, who desired to remain
with their mother, directions contained in the impugned judgment
were stayed. At the same time, the respondent was given access
to these children as well as visitation rights. Notice was issued
on March 04, 2016. During the period of pendency of these
proceedings for more than a year, the respondent has met the
children regularly with the grant of visitation rights. This Court,
just before final hearing, again met the children. Tanay is
seventeen years of age and Varenya is thirteen years old. At this
age, they are capable of understanding where their welfare lies.
This Court has found that both the children are very comfortable
in the company of their mother. They have expressed their desire
to stay with their mother. This Court also feels that welfare of the
children lies by allowing the appellant to retain the custody of the
children. Circumstances explained above provide adequate
reasons for taking this course of action. Children at discernible
age of seventeen and thirteen years respectively, are better
equipped, mentally as well as psychologically, to take a decision
in this behalf. It would be worthwhile to mention that during our
interaction with these children, they never spoke ill of their father.
In fact, they want to be with the respondent as well and
expressed their desire to remain in touch with him and to meet
Criminal Appeal No. of 2017 Page 14 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
him regularly. They never showed any reluctance in this behalf.
At the same time, when it came to choosing a particular parent for
the purposes of custody, they preferred their mother. In fact,
these were the reasons because of which the Additional ACMM
had passed orders dated July 01, 2015 (after interviewing the
children and ascertaining their wishes as well as welfare)
rejecting the request of the respondent to restore custody to him.
Same course of action was adopted by the learned Sessions
Court while dismissing the appeal of the respondent on August
06, 2015 and affirming the order of Additional ACMM dated July
01, 2015. The High Court has discarded these orders without
giving any cogent reasons and on the spacious and tenuous
ground that such orders could not have been passed in view of
the earlier detailed orders of the Additional ACMM dated
December 28, 2015 and March 04, 2015, thereby refusing the
custody of the children to the appellant. In this process, what is
ignored by the High Court was that even those were interim
orders and the custody was refused at that juncture because of
the reason that children were in the mid-term of the academic
session. Be that as it may, it was incumbent upon the High Court
to find out the welfare of the children as on that time when it was
passing the order. As pointed out above, apart from discussing
Criminal Appeal No. of 2017 Page 15 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the ‘welfare principle’, the High Court has not done any exercise
in weighing the pros and cons for determining as to which of the
two alternatives, namely, giving custody to the appellant or to the
respondent, is better and more feasible.
16) Learned counsel for the respondent had made a fervent
plea to the effect that if custody is retained by the appellant, it
would amount to giving her advantage of her own wrong as she
took undue advantage of the gracious act of the respondent in
voluntarily handing over the custody of the children, but only for
three days. He also highlighted the conduct of the appellant, as
discussed by the High Court, which has castigated the appellant
in this behalf in not obeying the interim directions of giving access
to the respondent.
17) In view of our aforesaid discussion, we do not find these
arguments to be meritorious. It also needs to be emphasised that
the Court, in these proceedings, is not concerned with the dispute
between the husband and the wife inter se but about the custody
of children and their welfare. A holistic approach in this behalf is
to be undertaken. Scales tilt in favour of the appellant when the
matter is examined from that point of view.
Criminal Appeal No. of 2017 Page 16 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
18) As a result, this appeal is allowed, resulting in setting aside
of the impugned order dated February 17, 2016 passed by the
High Court in the writ petition and restoring the order dated
August 06, 2015 passed by the Court of Sessions, Greater
Mumbai, which affirmed the order dated July 01, 2015 passed by
the Court of 38th Court of Additional ACMM, Ballard Estate,
Mumbai. At the same time, weekend access given to the
respondent by interim directions of this Court shall continue to
prevail. Moreover, during Dussehra, Diwali, Christmas or
summer vacations etc., the respondent shall be entitled to avail
the custody for half of the durations of those vacations. However,
while effecting this arrangement, it shall be ensured that studies
of the children are not affected. In case of any difficulty in
working out the aforesaid modalities, the parties shall be at liberty
to approach the trial court. Since the custody of the children is
allowed to be retained by the appellant-mother, domicile
certificates of the children as well as their passports which are
with the respondent, shall be handed over to the appellant.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
Criminal Appeal No. of 2017 Page 17 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
NEW DELHI;
SEPTEMBER 4, 2017.
Criminal Appeal No. of 2017 Page 18 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
ITEM NO.1501 COURT NO.6 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1553/2017
PURVI MUKESH GADA Appellant(s)
VERSUS
MUKESH POPATLAL GADA & ANR. Respondent(s)
([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])
Date : 04-09-2017 This matter was called on for pronouncement
of JUDGMENT today.
For Appellant(s) Ms. Kamini Jaiswal, AOR
For Respondent(s) Mr. Baij Nath Patel, Adv.
Ms. Sweta, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Hon'ble Mr. Justice A.K. Sikri pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice
Ashok Bhushan and His Lordship.
Appeal is allowed in terms of signed Reportable
Judgment.
Pending applications, if any, stand disposed of.
(B.PARVATHI) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)
Criminal Appeal No. of 2017 Page 19 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1553 OF 2017
(ARISING OUT OF SLP (CRL.) NO. 1867 OF 2016)
PURVI MUKESH GADA .....APPELLANT(S)
VERSUS
MUKESH POPATLAL GADA & ANR. .....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
It is an unfortunate case where the parties, who are wife
and husband, are having a bitter and acrimonious fight over the
custody of their children. Such custody battles are always
regrettable, not only for the spouses who resort to this kind of
litigation, which is the offshoot of matrimonial discord and results
in their separation from each other, but also for their child/children
who become the subject matter of this kind of dispute. Failure of
marriage generally leads to disputes of varied nature, either in the
form of divorce or enforcement of conjugal rights or maintenance
etc. and even criminal cases in the form of proceedings under
Criminal Appeal No. of 2017 Page 1 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
Section 498A of the Code of Criminal Procedure, 1973 and so on.
However, in those cases where their togetherness as spouses
had resulted in procreation of children, the war is extended by
laying respective claims on the custody of those children as well.
These minor children, for their proper upbringing, need the
company of both the parents – mother as well as the father, for
financial reasons, security reasons, psychological reasons, etc.
They need the love of both their parents. Not only separation of
their parents from each other deprives these children 24/7
company of both the parents, when it results in legal battle of
custody in the courts, the situation becomes more traumatic for
these children because of various obvious reasons. That is why
such cases which seriously impact these children are the most
unfortunate.
2) In the instant case, marriage between the parties as per Hindu
rites and ceremonies was solemnised way back in November
1997. They lived together for number of years. Their first child, a
boy named Taney, was born in the year 2000 and second child, a
daughter named Varenya, was born in the year 2004. The
appellant herein left the matrimonial home on February 18, 2013.
Thus, they were together for more than fifteen years when the
Criminal Appeal No. of 2017 Page 2 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
desertion took place, though as per the allegations of the
appellant she had suffered mental and physical torture at the
hands of the respondent since the beginning of the marriage, but
for the sake and well being of the children and also because of
her financial dependency on the respondent she continued to live
with the respondent. These allegations of maltreatment of the
appellant are denied by the respondent. In any case, that is not
the crux of the matter.
3) It so happened that when the appellant left her matrimonial home
in Pune and came to her parents house in Mumbai, children
remained in the custody of the respondent. Tanay was not at
home as he was studying in a boarding school at Coimbatore at
that time. Insofar as Varenya is concerned, the allegation of the
appellant is that it is the respondent who did not allow the
appellant to take her along to Mumbai. Some attempts were
made thereafter for settlement of their disputes, which did not
bear any results. On September 18, 2014, the appellant filed a
domestic violence case in the 38th Court of Additional ACMM,
Ballard Estate, Mumbai on the ground of gross mental and
physical cruelty, including verbal and physical abuse and occult
practices. Three months after filing the said case, the appellant
Criminal Appeal No. of 2017 Page 3 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
moved an application therein praying for access to her minor
children during Christmas vacation, which was allowed to be
availed of in the respondent’s house in Pune.
4) In February 2015, Varenya was also admitted in a boarding
school by the respondent. The appellant, at that juncture, moved
an application for interim custody of the minor children as well as
for maintenance. However, custody was not allowed on the
ground that children were studying and it would not be proper to
give custody during the midst of their academic year. At the same
time, interim maintenance @ Rs.30,000/- per month was directed
to be given to the appellant. In May 2015, when the summer
vacations were approaching, the appellant filed an application
praying for custody of children for half of the vacations. Though
this application was still pending and no orders passed thereon,
the respondent himself handed over the custody of the children to
the appellant on June 17, 2015. There are divergent stands of
the parties behind such a move on the part of respondent in
voluntarily giving custody of the children to the appellant. As per
the respondent, even when there was no order of the Court, as a
goodwill gesture, he gave custody of the children to the mother
for a period of three days with clear understanding that custody of
Criminal Appeal No. of 2017 Page 4 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the children would be handed back to the appellant after three
days. On the other hand, the appellant claims that the
respondent entrusted the children to her even when without any
order of the Court, compelled by the circumstance inasmuch as
Tanay had miserably failed in his Grade IX examinations while
studying in the boarding school at Coimbatore and the
respondent wanted the appellant to give coaching to him so that
he could reappear and pass the examination in order to get
promoted to Grade X without wasting an academic year.
5) The children were not given back to the respondent after the
expiry of three days. Here again both the parties have their own
version. According to the appellant, the children themselves
refused to go back to the respondent. On the other hand, the
respondent maintains that it is the appellant whose intentions
became bad and, thereby, she refused to handover the custody of
the children to him. Be that as it may, the respondent filed an
application before the Court of Additional ACMM for restoration of
custody of the children. The learned Additional ACMM called
both the children in his Chambers and interacted with them.
Thereafter, he passed the orders dated July 01, 2015 vide which
custody of the children was given to the appellant, rejecting the
Criminal Appeal No. of 2017 Page 5 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
request for restoration of their custody to the respondent. Appeal
was filed against this order in the Sessions Court, which was also
dismissed vide judgment dated August 06, 2016. Orders of the
learned ACMM dated July 01, 2015 and that of the Sessions
Court dated August 06, 2015, were challenged by the respondent
in the form of writ petition filed in the High Court of Bombay.
Disposing of this writ petition vide judgment dated February 17,
2016, the High Court has directed that custody of the children be
restored with the respondent. It is this order which is the subject
matter of challenge in the instant appeal.
6) Before stating the reasons which prevailed with the High Court in
directing the custody of the children to the respondent, it is
imperative to take note of certain proceedings before the High
Court during the pendency of the writ petition.
7) Vide order dated January 29, 2015, the High Court directed day
access on September 21 and 24, 2015. Again vide order dated
November 11, 2015, overnight access for the coming weekend
was accorded to the respondent. Identical overnight access was
given by the High Court vide order dated November 23, 2015.
However, the respondent could not avail the benefit of these
orders. According to the respondent, the appellant had violated
Criminal Appeal No. of 2017 Page 6 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
these orders, whereas the appellant has pleaded that on
September 24, 2015 the respondent himself did not come to have
the access of the children and insofar as order granting overnight
access during weekends is concerned, the explanation of the
appellant is that it is the children who refused to go to their father
as they were petrified and, therefore, themselves took such a
decision.
8) On December 11, 2015, the respondent was given seven days
access during Christmas vacation with Counsellor’s help. For
carrying out this order, the trial court called the children on
December 23, 2015 where the respondent was also called.
Again, as per the appellant’s version, the children, after remaining
with the respondent for forty five minutes alone, ultimately told
him that they did not wish to go with him. The respondent was to
come to pick the children on December 25, 2015 and as per the
appellant, he did not come to pick the children.
9) The respondent maintained that on all the aforesaid occasions it
is the appellant who had refused to handover the custody to him
and had, thus, violated the orders of the High Court. Accordingly,
he filed an affidavit in the High Court for initiating contempt
proceedings against the appellant. The appellant filed reply
Criminal Appeal No. of 2017 Page 7 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
affidavit thereto refuting the allegations. Matter was finally heard
and culminated in the judgment dated February 17, 2016.
10) With this, we come to the reasons which have weighed with
the High Court in directing the custody of the children to be given
to their father, namely, the respondent. After perusing the
impugned judgment, these are summarised as below:
(i) Orders dated December 28, 2014 and March 04, 2015 were
passed by the Additional ACMM, confirming the custody of
the children with the respondent-father inasmuch as by
these orders prayer for giving interim custody of children to
the appellant-wife was rejected. Instead, the appellant was
only given limited access during vacation to meet the
children in the school at Pune whenever she desired.
(ii) Even though the appellant had moved application dated
May 27, 2015 seeking access to the children during
vacation, which was from June 13, 2015 to August 09,
2015, and no orders were passed in the said application, as
per the respondent, as a humanitarian gesture and without
there being any legal obligation or court directions, he went
to the appellant’s residence at Mumbai on June 17, 2015
and left the children with the appellant with a clear
Criminal Appeal No. of 2017 Page 8 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
understanding that he would pick them up by June 19,
2015. The High Court has noted the stand of the appellant
as well, but has mentioned that as per the respondent’s
case when he went to take the custody of the children on
June 19, 2015, the appellant refused to restore the custody.
The High Court has given weightage to the fact that on
June 17, 2015, the respondent had placed the children in
the custody of the appellant even when there was no court
order or legal obligation.
(iii) The High Court wanted to interact with the children in order
to ascertain their wishes as well as to determine as to which
course of action is appropriate in the welfare of the children.
However, before doing so, the High Court deemed it
appropriate to grant weekend access to the respondent.
For this, directions were given (which have already been
taken note of). As per the High Court, prima facie it
appeared that the appellant was responsible for
non-compliance of those orders and even if it is to be
believed that the children did not show their unwillingness to
go to their father, it indicates the extent of influence exerted
by the mother upon her minor children.
(iv) As per the High Court, in the face of two detailed orders
Criminal Appeal No. of 2017 Page 9 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
dated December 28, 2014 and March 04, 2015 passed by
the Additional ACMM declining custody of minor children to
the appellant and allowing the respondent to retain their
custody, there was no reason not to restore the custody to
the respondent on June 19, 2015. It has observed that
subsequent orders of Additional ACMM declining to give the
custody, which is upheld by the Sessions Court, are without
application of mind.
(v) The High Court has discussed the law on custody of
children and explained the ‘welfare principle’, which is the
paramount consideration while deciding custody matters is
to see where the welfare of children lies. Applying this
principle, the direction is given to restore the custody of the
children to the respondent after the end of academic term in
April or May 2016.
11) We may say at the outset that though the ‘welfare principle’
is correctly enunciated and explained in the impugned judgment,
no reasons are given as to how this principle weighed, on the
facts and circumstances of this case, in favour of the respondent.
Instead two main reasons which have influenced the High Court
are: (i) earlier detailed orders are passed by the Additional ACMM
Criminal Appeal No. of 2017 Page 10 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
allowing the respondent to retain the custody; and (ii) the
appellant here had not given access of children to the respondent
even during weekend, in spite of orders passed by the High
Court.
12) After hearing the counsel for the parties at length, we are of
the opinion that the matter is not dealt with by the High Court in
right perspective. Before supporting these comments with our
reasons, it would be apposite to take note of certain
developments from June 17, 2015, the date on which the
respondent had himself handed over the children to the appellant,
till the passing of the orders by the High Court. It is also
necessary to state the events which took place during the
pendency of these proceedings.
13) Whether the respondent had handed over the custody of
the children to the appellant on a humanitarian gesture or not,
fact which is not in dispute is that Tanay had failed in his Grade IX
examinations and he was to reappear for the same. It is also a
fact that it is the guidance and tuition of the appellant that Tanay
passed the examinations on reappearance and could be
promoted to Grade X. Another fact which needs to be noted here
is that when the appellant left the matrimonial home, Tanay was
Criminal Appeal No. of 2017 Page 11 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
not residing with the parties. He was admitted in a boarding
school in Coimbatore, a far-away place from Pune. No doubt, the
respondent claims that intention in admitting Tanay in a boarding
school in Coimbatore was that he should get best education as
the school in which he was admitted is a prestigious educational
institution. At the same time, it is also a fact that Tanay was not in
the physical company of his father on day-to-day basis. It is also
a harsh reality that he was not doing well in studies during the
period his legal custody was entrusted to the respondent. His
overall performance in most of the subjects was dismal and he
had even failed in Grade IX. At that stage when, within few days,
there was a re-examination, handing over Tanay, along with
Varenya, to the appellant, without even any court order, lends
credence to the version of the appellant that the purpose was to
give appropriate tuition to Tanay by the appellant so that his
academic year is not wasted. Another fact which needs to be
emphasised at this stage is that though the custody of Varenya
was also with the respondent and request of the appellant to
hand over interim custody of the children did not prevail with the
Additional ACMM who rejected this request vide orders dated
December 28, 2014 and March 04, 2015, even Varenya was
admitted in a boarding school by the respondent thereafter. This
Criminal Appeal No. of 2017 Page 12 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
fact also gives some credence to the version of the appellant that
because of his pre-occupation in the business or otherwise, the
respondent was not in a position to take personal care of the
children and, therefore, he put both of the children in the boarding
schools.
14) After the children came to the appellant, they were admitted
in a school in Mumbai. It is pertinent to note that Tanay’s
academic performance has improved significantly. He is getting
very high grades in the examinations. In fact, academic
performance of Varenya has also gone up. This factor, though
noted by the High Court, has been lightly brushed aside with the
observations that if the children were not doing well earlier, blame
cannot be put on the respondent as it could be the result of
disputes between the parents. In the process what is ignored is
that in spite of the said dispute still subsisting, the academic
performance of the children, while in the custody of their mother,
has gone up tremendously.
15) When the special leave petition had come up for hearing, on
the first day itself the respondent had appeared through his
counsel as a caveator. Children were also brought to the Court
and this Court interacted with them. While issuing the notice,
Criminal Appeal No. of 2017 Page 13 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
based on the interaction with the children, who desired to remain
with their mother, directions contained in the impugned judgment
were stayed. At the same time, the respondent was given access
to these children as well as visitation rights. Notice was issued
on March 04, 2016. During the period of pendency of these
proceedings for more than a year, the respondent has met the
children regularly with the grant of visitation rights. This Court,
just before final hearing, again met the children. Tanay is
seventeen years of age and Varenya is thirteen years old. At this
age, they are capable of understanding where their welfare lies.
This Court has found that both the children are very comfortable
in the company of their mother. They have expressed their desire
to stay with their mother. This Court also feels that welfare of the
children lies by allowing the appellant to retain the custody of the
children. Circumstances explained above provide adequate
reasons for taking this course of action. Children at discernible
age of seventeen and thirteen years respectively, are better
equipped, mentally as well as psychologically, to take a decision
in this behalf. It would be worthwhile to mention that during our
interaction with these children, they never spoke ill of their father.
In fact, they want to be with the respondent as well and
expressed their desire to remain in touch with him and to meet
Criminal Appeal No. of 2017 Page 14 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
him regularly. They never showed any reluctance in this behalf.
At the same time, when it came to choosing a particular parent for
the purposes of custody, they preferred their mother. In fact,
these were the reasons because of which the Additional ACMM
had passed orders dated July 01, 2015 (after interviewing the
children and ascertaining their wishes as well as welfare)
rejecting the request of the respondent to restore custody to him.
Same course of action was adopted by the learned Sessions
Court while dismissing the appeal of the respondent on August
06, 2015 and affirming the order of Additional ACMM dated July
01, 2015. The High Court has discarded these orders without
giving any cogent reasons and on the spacious and tenuous
ground that such orders could not have been passed in view of
the earlier detailed orders of the Additional ACMM dated
December 28, 2015 and March 04, 2015, thereby refusing the
custody of the children to the appellant. In this process, what is
ignored by the High Court was that even those were interim
orders and the custody was refused at that juncture because of
the reason that children were in the mid-term of the academic
session. Be that as it may, it was incumbent upon the High Court
to find out the welfare of the children as on that time when it was
passing the order. As pointed out above, apart from discussing
Criminal Appeal No. of 2017 Page 15 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
the ‘welfare principle’, the High Court has not done any exercise
in weighing the pros and cons for determining as to which of the
two alternatives, namely, giving custody to the appellant or to the
respondent, is better and more feasible.
16) Learned counsel for the respondent had made a fervent
plea to the effect that if custody is retained by the appellant, it
would amount to giving her advantage of her own wrong as she
took undue advantage of the gracious act of the respondent in
voluntarily handing over the custody of the children, but only for
three days. He also highlighted the conduct of the appellant, as
discussed by the High Court, which has castigated the appellant
in this behalf in not obeying the interim directions of giving access
to the respondent.
17) In view of our aforesaid discussion, we do not find these
arguments to be meritorious. It also needs to be emphasised that
the Court, in these proceedings, is not concerned with the dispute
between the husband and the wife inter se but about the custody
of children and their welfare. A holistic approach in this behalf is
to be undertaken. Scales tilt in favour of the appellant when the
matter is examined from that point of view.
Criminal Appeal No. of 2017 Page 16 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
18) As a result, this appeal is allowed, resulting in setting aside
of the impugned order dated February 17, 2016 passed by the
High Court in the writ petition and restoring the order dated
August 06, 2015 passed by the Court of Sessions, Greater
Mumbai, which affirmed the order dated July 01, 2015 passed by
the Court of 38th Court of Additional ACMM, Ballard Estate,
Mumbai. At the same time, weekend access given to the
respondent by interim directions of this Court shall continue to
prevail. Moreover, during Dussehra, Diwali, Christmas or
summer vacations etc., the respondent shall be entitled to avail
the custody for half of the durations of those vacations. However,
while effecting this arrangement, it shall be ensured that studies
of the children are not affected. In case of any difficulty in
working out the aforesaid modalities, the parties shall be at liberty
to approach the trial court. Since the custody of the children is
allowed to be retained by the appellant-mother, domicile
certificates of the children as well as their passports which are
with the respondent, shall be handed over to the appellant.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
Criminal Appeal No. of 2017 Page 17 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
NEW DELHI;
SEPTEMBER 4, 2017.
Criminal Appeal No. of 2017 Page 18 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
ITEM NO.1501 COURT NO.6 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).1553/2017
PURVI MUKESH GADA Appellant(s)
VERSUS
MUKESH POPATLAL GADA & ANR. Respondent(s)
([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.])
Date : 04-09-2017 This matter was called on for pronouncement
of JUDGMENT today.
For Appellant(s) Ms. Kamini Jaiswal, AOR
For Respondent(s) Mr. Baij Nath Patel, Adv.
Ms. Sweta, Adv.
Mr. Chanchal Kumar Ganguli, AOR
Hon'ble Mr. Justice A.K. Sikri pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice
Ashok Bhushan and His Lordship.
Appeal is allowed in terms of signed Reportable
Judgment.
Pending applications, if any, stand disposed of.
(B.PARVATHI) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed reportable judgment is placed on the file)
Criminal Appeal No. of 2017 Page 19 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
