JAHANGIR MANAJI MEHTA Vs. NINA JAHANGIR MEHTA

JUDGEMENT

(1.) This application was filed on September 10, 1970, on behalf of the father for the legal custody of his two minor sons as against the similar claim of the mother, when the suit on behalf of the husband for judicial separation was pending against the wife. As both the parties wanted expeditious hearing of the suit, the present application and the suit were previously directed to be heard together. On December 4, 1970, the suit was heard and a decree for judicial separation was passed on the basis of a verdict of the delegates of. Parsi community as required under the Parsi Marriage and Divorce Act, 1936. At the time of the hearing, serious allegations were made by the husband and the wife against each other. On the date the said decree was passed the present application was adjourned at the request of the parties. In the present application, interim custody of children was prayed for when the suit was pending. Strictly speaking, there is no application before me for the custody of the children after the final decree. But the Learned Counsel for both the parties have submitted before me. that the present application might be treated as an application for the custody of the children after the final decree.

(2.) The short point to be decided is whether a Parsi father should have the legal custody in preference to a Parsi mother. The meaning of the word 'custody', according to the Shorter Oxford Dictionary, is 'safe keeping', 'protection', 'charge' 'care', 'guardianship'. In the Indian statutes, however, the words 'custody' and 'guardianship' have not been used as identical concepts. In Ss. 10, 24, and 25 of the Guardians and Wards Act, 1890, there appears to be a legal nexus between 'custody' and 'guardianship of the person of the minor' inasmuch as a guardian of the person of the minor appointed under the said Act has the right to have the custody or charge of the minor. In Ss. 41, 42, 43 and 44 of the Indian Divorce Act, 1869, and Sec. 49 of the Parsi Marriage and Divorce Act, 1936, the words 'custody maintenance and education' have been separately used conveying the fact that they have different connotations. Mr. Panja, counsel on behalf of the father, the Petitioner, has submitted that the father being the natural guardian of the children has alone the legal right to the custody of the children. According to him, unless the Court is convinced on the material before it that the father is unfit to have the custody of the children the father alone has the absolute legal right to have such custody. Reliance has been placed by him on my judgment in Zerina Jamshed Kalyanvala v/s. Jamshed Framroze Kalyanvala , (1969) 74 C.W.N. 51 and also the Appeal Court judgment between the same parties , (1969) 74 C.W.N. 261. In my said judgment I have held that a Parsi father has the legal right to educate his children in preference to a Parsi mother. Prior to my said judgment, Dutta J. in that case had already granted legal custody to the father. In that case, the only question before me was whether the legal custody of the children would include the legal right of the father to have the children educated in a particular way in preference to the mother. In the case before me, Mr. Panja has argued as a point of law that father alone has the legal right to have the legal custody of the children. Reference has also been made to Bommadevaria Satyanarayan Varsprasade Rao v/s. Venkata Lakhmi Narayannama, A.I.R. 1924 Mad. 45 .

(3.) Mr. Dey, on behalf of the wife, has drawn my attention to Sec. 49 of the Parsi Marriage and Divorce Act, 1936, and has submitted that the primary consideration which should guide the Court in allowing legal custody of the children is the welfare of the children. He has, therefore, argued that on the facts of this case the mother should be given the legal custody of the children inasmuch as the father deserted the children and has always been cold and indifferent to the children for the last three years.