M J JANARTHANAN Vs. K A NAGAYASAMY

JUDGEMENT

(1.) KISHORE aged about 4 years 3 months and ii) Baby M.J.Poornima aged about 11 months to the petitioner forthwith so as to enable him to take all necessary steps in a right direction to educate them.)This Petition is filed under Section 25 of the Guardian and Wards Act by the father of the minor children M.J.KISHORE and M.J.Poornima.

(2.) THE first respondent is the father-in-law and the second respondent is the brother-in-law of the petitioner. THE case of the petitioner was that he got married to one Nagasubbu according to the Hindu Rites and Customs on 22.08.1993. After their marriage, a matrimonial home was set up at No.1, Sembangi Nagar, Thirunindravur. THE petitioner was employed in Muscat at that time in Oil Rig and hence, he left his wife with his mother and sisters. THE petitioner's wife left the matrimonial home without any justification. At the instigation of respondents, a criminal complaint was given by his wife to the All Women Police Station, Avadi. 3. Pursuant to the reconciliation among the family members, the petitioner set up a separate matrimonial home at No,8, Chitraiveedhi, Annanur and were living in the said place. When the petitioner and his wife were living together, she got conceived. Due to advanced stage of pregnancy, she went to her parents house. She gave birth to a male child on 31.07.1996 and they named him M.J.Kishore. After giving birth to the child, she never returned from the parents house which led to the petitioner in filing an application for restitution of conjugal rights in O.P.No,42 of 1997.4. THE petitioner's wife filed a counter statement in the said OP. After some conciliation proceedings before the Family Court, the petitioner again set up another matrimonial house at Thirunindravur and they lived together for 20 months. During that time, the first son was studying in a school at Thirunindravur. A second female child was born on 09.10.1999. It was stated that during March 2000, her health condition became worse. On 08.07.2000, the petitioner received a telegram from the first respondent stating that his wife was in a critical condition. On 14.07.2000, his wife died. After the funeral rites were performed on 15.07.2000, the petitioner demanded the custody of the children which was not given to him and the children were taken away by the respondents. THE petitioner lodged a police complaint on 22.07.2000. 5. It was further stated that when the first respondent's wife died, the first respondent was a retired government servant and was getting a meagre amount towards pension whereas, the petitioner was earning a good salary. It was stated that the petitioner has a mother, who is a widow and four unmarried sisters and therefore, the children should grow up in their company. Under Section 6 of the Hindu Minority and Guardianship Act, the petitioner being the father and the natural guardian of the children is entitled to have the custody of the minor children.6. THE respondents have filed a counter statement denying the allegations. It was stated by the first respondent that he was a retired central government servant and he has four daughters and two sons. THE four daughters were already married and three daughters are living happily. It is only the second daughter, (who is the wife of the petitioner) never had a good life. In fact she was ill-treated by the petitioner's mother and sisters. THEy were harassing her with a demand for dowry. Even the first respondent, being the father was not allowed to meet her. He received several letters from his daughter that she was tortured and ill-treated by the in-laws and that she was treated like a servant maid. While all the sisters and mother of the petitioner will sit idle and enjoy watching Television, it is only the respondent's daughter who had to cook and clean the vessels and take care of all the nine members of the family. 7. Due to counseling, an independent matrimonial home was set up by the petitioner twice, wherein the two children were born. But the cruelty continued. After the birth of the second female child, the condition of his daughter became weak and she was not attended to by the petitioner. She was admitted at B.R.S.Hospital at Chenni and she was given treatment after respondent spending huge amounts. But the petitioner did not take care of his own wife. He did not even stay in the hospital. He left for Bombay leaving the custody of the children with his cruel sisters. Because of this reason, the respondents had to take the children to Madurai and left them under the custody of one of his daughter. During the last days, the first respondent's daughter, while she was in her death bed requested him and his sons not to hand over the children under any circumstances to the custody of the petitioner and his family. It was submitted that since the petitioner was only a bachelor and living in Bombay, it will not be conducive for the children to grow. THE petitioner is the sole breadwinner for the entire family of nine members and his income is not enough to meet his family commitments.8. During the pendency of the Original Petition, this Court passed an order on 24.06.2008 permitting the petitioner to have visitation rights over the children on weekends to spend time with them at a common place. THEreafter, the matter was directed to be posted before the Court. 9. It is now stated that except for one or two visits, the petitioner did not come to visit the children at Madurai. Afterwards, the matter was argued by both sides. It is the stand of the petitioner that he being the father and natural guardian is entitled to have the custody of the children. THEre is no disqualification for his having their custody. THE first respondent is only the grand father and the second respondent was the brother-in-law and they are not entitled to have the custody of the minor children.10. It is also stated that the two children are studying in a good school at Madurai and they have got well integrated to the family of the respondents. THErefore, it is not conducive for the children to be shifted elsewhere thereby, creating a disruption in the middle of their education. 11. From the evidence let in by the parties, it transpires that the relationship between the petitioner and the deceased wife were not very cordial. At one point of time, he had to file O.P.No,42 of 2007 for restitution of conjugal rights. Even at the time of her death, his attention towards the deceased wife was not very creditworthy. In the counter statement filed by the deceased wife in the OP before the Family Court, the family life was well described. At present, the children are studying in a good school and are under the custody of the first respondent (maternal grand father), who is able to take care of the children with the help of his daughters and son-in-laws. 12. In Ex.R4, the deceased Nagasubbu had stated that she has been ill-teated by her in-laws and she wanted to be taken out of the house. Same was the case in the complaint given by Nagasubbu to the Inspector of Police, marked as Ex.R6. Pursuant to the complaint in Ex.R8, the petitioner himself stated that as soon as he gets an employment, he will set up a separate house. Exs.R25 and R26 shows that the children are studying in a good school at Madurai. From the documentary evidence produced, it cannot be said that the children were removed from the custody of the petitioner by unlawful means. On the contrary, the children were entrusted to the custody of the respondents only by late Nagasubbu and the petitioner had agreed to keep the children in the custody of the grandfather. THErefore in the facts and circumstances of the case, the only issue is whether the petitioner is entitled to have the custody of the minor children.13. THE learned counsel for the respondents placed reliance upon the following decisions for the purpose of showing that in circumstances where the custody order can never be final and the Court in its discretion can hand over the custody in the best interest of the children.i) R.V.Srinath prasad v. Nandamuri Jayakrishna (AIR 2001 SC 1056)ii) L.Chanaraj v. T.Rajammal (1997 (II) CTC 237)iii) Jai Prakash Khadria and another v. Shyam Sunder Agarwalla and another (2000 AIR SCW 2341)14. Apart from those decisions, the Supreme Court also vide its judgment in Mausami Moitra Ganguli v. Jayant Ganguli reported in (2008) 7 SCC 673, in paragraphs 19 to 22 has held as follows:"19. 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.20. 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.21. In Rosy Jacob v. Jacob A. Chakramakkal a three-Judge Bench of this Court in a rather curt language had observed that: (SCC p.855, para 15)15. ... 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."22. 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:-809. 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."15. Similarly the Supreme Court in Gaurav Nagpal v. Sumedha Nagpal reported in (2009) 1 SCC 42, after surveying into various earlier decisions of the Supreme Court in paragraphs 43 to 52 has held as follows:"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.44. THE aforesaid statutory provisions came up for consideration before courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.45. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved, the High Court of Bombay stated: (AIR p.105)"... 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 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.47. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, this Court reiterated that the only consideration of the court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the court. Mature thinking is indeed necessary in such a situation to decide what will enure to the benefit and welfare of the child.48. Merely because there is no defect in his personal care and his attachment for his children-which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield 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.49. In Surinder Kaur Sandhu v. Harbax Singh Sandhu this Court held that Section 6 of the Act constitutes father as a 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. [See also Elizabeth Dinshaw v. Arvand M.Dinshaw and Chandrakala Menon v. Vipin Menon (Capt.).]50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. THE court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. THE court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case, the court has to give due weightage to the child-s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. THEy are equal if not more important than the others.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 well-being. 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.52. THE trump card in the appellant-s argument is that the child is living since long with the father. THE argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. THE High Court has referred to these aspects in detail in the impugned judgments."16. If the factual matrix of this case is applied in this legal angle, it can be safely held that it is not necessary to disturb the present arrangement where the children are being educated by their grand father and there is also no complaint from the children. THErefore, the petition for custody of the two children cannot be allowed to be given to the petitioner.17. THE allegations made against the petitioner being cruel or indifferent towards his wife during her last days is not enough to deprive his visitation rights. THE petitioner, being the father and the natural guardian, is entitled to have visitation rights over the minor children. THE arrangement made by this Court vide its interim order dated 24.06.2008 can be continued. During the vacation period for the children, the petitioner can have the custody of the children on the following manner. THE petitioner/father can have the custody of the minor children during holidays such as Dussehra and Christmas for a period of three days each and during summer vacation for a period of 10 days. THE father is entitled to get the custody of the minor children from their grandfather during those periods. On the expiry of the stipulated periods, the father shall hand over the custody of the children back to the grandfather.18. In the light of the visitation rights granted to the petitioner, the permanent custody of the minor children will be with the respondents. THE OP is disposed of accordingly. In case of any difficulties, the parties are at liberty to move this Court with appropriate applications. No costs.