MINOCHER DINSHAW IRANI Vs. KEKI RUSTOMJI IRANI

JUDGEMENT

(1.) FRASHMIM is a one and half years old female child. Her father Minocher and her maternal grand parents Keki and Khorshed are fighting this legal battle for her custody. The parties are Parsis by religion. The petitioner Minocher married Pinky,, the daughter of respondent Nos. 1 and 2 Keki and Khorshed on 20th May, 1994 according to Parsirites. Frashmim was born on 18th May, 1995. Unfortunately soon after the birth of Frashmim, the petitioner's wife Pinky fell ill. On diagnosis it was discovered that Pinky was suffering from malignant tumor in the skull as well as near the neck. Ulimately, the malignancy spread to the lungs and became terminal. Pinky died on 24th July, 1996. It seems that after her birth, Frashmim, the minor child, stayed in the house of the respondent Nos. 1 and 2 mainly due to the unfortunate developments which finally led to Pinky's death. According to the petitioner, as Frashmim was in her infancy and required care and attention, it was decided by the petitioner and the respondent Nos. 1 and 2 who are the parents of Pinky that the petitioner and his mother and the respondent No. 1 should devote their attention and time to take care of Pinky at the hospital and that the respondent No. 2 who is Pinky's mother and mother -in -law of the petitioner would take care of Frashmim. On the other hand, the respondents' version is that the petitioner's parents really did not care for the deceased Pinky or her child. They did not even attend Pinky's funeral. Even the petitioner did not show much interest in Frashmim when Pinky was alive. The parties are giving conflicting versions but the fact remains that the child stayed with the maternal grand parents during the illness of Pinky and even after her death. It seems that after Pinky's death, the petitioner approached the respondent Nos. 1 and 2 and requested them to hand over the custody of the child to the petitioner. The respondent Nos. 1 and 2 declined to give the custody. It seems that there were some unpleasant scenes. At one stage, even the police was brought into picture. Finally in August, 1996 the petitioner filed the present petition for custody of Frashmim.

(2.) IT is well settled that in any proceedings before any Court concerning the custody or guardianship of an infant, the Court must regard 'the welfare of the child' as paramount consideration. The paramountcy of the welfare of the child is axiomatic. It is most dominant consideration in the consciousness of the Court. Yet the courts have found no subject more difficult to deal with than the meaning and application of the often -repeated phrase 'the welfare of the child is of paramount consideration'. The attitude of the Courts, where parents battle over children has not been uniform, though a tendency to lean in favour of the mother is discernible where the contest is between the parents. In this case the contest is not between the parents but between a parent - the father - on the one hand and the maternal grand parents on the other. Their respective Counsel Ms. Gonsalves and Mr. Shroff have advanced extensive submissions with great vehemence. Both are claiming that interest of the minor is best secured in the hands of their respective clients. Several decisions of the Apex Court as well as High Courts are pressed into service. Let us first consider the submissions.

(3.) THE short question which falls for my consideration is whether I should direct handing over child to the custody of the father by the maternal grand parents. There cannot be two opinions that the welfare of the minor is a dominant consideration in this case. In : [1973]3SCR918 , Rosy Jacob v. Jacob, the Supreme Court observed thus: 'the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare.' The principle that the welfare of the child is a paramount consideration is easy to understand, but less easy to apply, particularly in the cases where the contesting parties are not the parents but the fight is between a parent and the maternal grand parents. Mr. Shroff brought to my notice the decision of Andhra Pradesh High Court in : AIR1981AP1 , L. Chandran v. Venkatalakshmi. There a Division Bench of Andhra Pradesh while considering a case where the fight for custody of the minor was between the maternal grand parents and the father, held that the right of the father is not unlimited and even if he was able to establish that he is not unfit to be the guardian of the minor children, that will not insulate him from meeting a defence that for securing the welfare of the minor children, the custody cannot be given to him. If the Court is convinced that the welfare of the minors is better served, if the custody is given to some other persons, the fact that the natural guardian is not unfit to be the guardian of the person of the minor, will not prevent the Court from giving the custody of the minors to a person other than the father.