Judgment:
ORDER
A.K. Mishra, J.
1. This revision petition has been filed by the petitioner against the order dated 21-9-1998 passed In Civil Suit No, 50-A/97 by District Judge, East Niwar, Khandwa.
2. The respondent was married with the petitioner on 18-9-85 and three issues were born out of the wedlock i.e. two sons - Manpreet Singh and Tajinder Singh and one daughter namely Ku. Tanvi. Sardar Bhupendra Singh had filed a petition for divorce under Seciton 13 of the Hindu Marriage Act on the ground that respondent-wife was Involved in the conspiracy to commit the murder of the father of the petitioner. Petitioner was also allegedly insulted by the respondent levelling a charge against him of being incapable to satisfy her sexual desire. The respondent-wife however denied the allegations and made counter-allegations against the petitioner-husband that she was forced by him to live in her parental house.
3. An application under Section 26 of the Hindu Marriage Act for a direction regarding the custody of two sons - Manpreet Singh aged about 11 years and Tejinder Singh aged about 7 years. It was alleged in the application that daughter-Tanvee is living with respondent - mother and the sons Manpreet Singh and Tejinder Singh are inthe custody of petitioner-father. It was also alleged in the application that petitioner Bhupendra Singh is not able to look-after the children and both the sons have been deprived of the parental love and affection by the act of the husband/petitioner. Son Manpreet Singh has been kept in hostel and is studying in Christ Church Higher Secondary School at Jabalpur, It is also alleged that petitioner husband is showing apathy towards his sons. Younger son - Tejlnder Singh is living at Burhanpur with the sister of petitioner/husband and taking his education at Burhanpur itself. Thus both the sons are deprived of parental love and care which is a basic requirement in such a tender age. It is further alleged that as the petitioner/husband is not willing to keep the children with him, and for this reason only son Tejlnder Singh has been sent to his sister's place at Burhanpur. It is also one of the allegations that petitioner/husband does not permit the respondent-mother of the children to meet them. The sons, both Manpreet Singh and Tejinder Singh are alleged to be under the constant threat. Initially Son Tejinder Singh was admitted in St. Poise School at Khandwa, in May 1997. When mother/respondent contacted her son, he was taken out from that school and was sent to Burhanpur. Both the sons are not allowed to meet their mother/the respondent.
4. Petitioner - husband has denied the allegations levelled by respondent/wife, and contended that she was not capable of look-ing-after the interest of the children and keeping in view the welfare of the children he has got them admitted in different schools at Burhanpur and Jabalpur, and they are taking proper education. It is also alleged by the petitioner/husband that respondent/wife was not in a position to maintain both the sons as she herself had filed an application claiming maintenance under Section 24 of the Hindu Marriage Act. As per the petitioner, he meets his sons from time to time and takes them to Khandwa on holidays. It has been submitted that minor children could remain only in the custody of natural father and not in the custody of mother.
5. Learned trial Court by the impugned order dated 21-9-98 has directed that since the husband was not keeping his both sons with him, they could be properly looked-after, in the circumstances, by the mother and thus custody of both the sons was ordered to be handed-over to mother. However, It was ordered that since both the sons were taking education at Jabalpur and Burhanpur, they should be transferred to mother's custody only after completion of academic session and the mother shall make arrangement for their proper education. It was also observed in the order of the trial Court that it would be open for the husband-Bhupender Singh to meet the sons as well as daughter who is already residing with her mother, Husband was also allowed to take his children to Khandwa at the time festivals and other school holidays. Expenditure to be incurred in the education of the children has also been ordered to be borne by the present petitioner, the father of the children.
6. Shri K. M. Agrawal, learned counsel appearing for the petitioner submitted that the application filed under Section 26 of the Hindu Marriage Act was not maintainable. He further contended that both the sons were not below five years of age at the time of filing of the application, as per the provisions of Hindu Minority and Guardianship Act, custody of the children cannot be taken away from the father. It is also submitted that father was looking-after the Interest of the sons as also the education which they were taking at different places i.e. Jabalpur and Burhanpur. He also submitted that at Amarawati (Maharashtra), it could not be expected that the children would get the education of the standard which they are receiving at Jabalpur and Burhanpur. He further submitted that husband is filing income-tax return for crores of rupees. It is further pointed out that in the application an averment has been made that wife and daughter were dependent on Narendrasingh, the brother of respondent/wife. He further submitted that when respondent/wife herself is dependent on others, how can she be expected to maintain her children.
7. Learned counsel appearing for the respondent submitted that the Court has power under Section 26 of the Hindu Marriage Act to pass an Interim order with respect to the custody of the children, she has further contended that eldest issue born out of the wedlock was daughter-Tanvee, is staying with the mother at Amrawati and taking education in an English Medium school at Amrawati itself. Husband - Bhupender Singh resides at Khandwa. Respondent-wife has alleged that petitioner/husband had not visited his son Manpreet Singh after 1997. Local guardian Smt. Rajni Chhabra also does not visit Manpreel Singh and thus he had been sent to hostel forcibly. Manpreet Singh had also written letters to his mother expressing desire to meet his sister Tanvee. As per Manpreet Singh, he is studying at Burhanpur under compulsion. Academic performance of the children has also deteriorated considerably.
8. Learned counsel appearing for the respondent further submitted that mother could be the best person to look after the welfare of the children and none else. It is alleged that father of the children does not get sufficient time to spend with his children and thus they are deprived of parental love and sympathy also as he is always busy in his business. However, the fact that petitioner is well off is not at all disputed. It is also not disputed that daughter Tanvee is getting proper education by residing with her mother, the present respondent. It is also alleged that both the sons Manpreet Singh and Tejinder Singh expressed their willingness being present In the Court in respect of their stay with father, under the pressure of the petitioner.
9. Learned counsel placed reliance on the decision of the Supreme Court in the matter of Gitba Hariharan v. Reserve Bank of India reported in 1999 (2) SCC 228 : (AIR 1999 SC 1149) to contend that the mother is having authority to have the custody of the children. He has further submitted that Interest of the children is a paramount consideration and the Court need not be influenced by Section 6 of the Hindu Minority and Guardianship Act. She has further submitted that there is no difference between mother and the father In the eye of law. She has submitted that financial aspect has been taken into account by the Court below. She further submitted that the scope of revision is very limited as there is no Illegality in the impugned order, and as such no interference is called for.
10. The welfare of a minor child is the paramount consideration. Every child is the future (sic) and the Vedic Hindu Law has recognized from the time immemorial that such right which is available to a minor; Manu VIII, 27.
'The king shall protect the inherited (and other property) of a minor, until he hasreturned (from his teacher's house) or until he has passed minority.'
Not only the welfare of the minor has to be considered but his future has also to be equally taken care of Narad-III 35, 36.
Till the eighth year a child is comparable (for legal purposes) to one in its mother's womb. Till he attains the age of sixteen he Is called a minor (Poganda). Then he becomes sui juris (Vyvaharagna).'
11. The said rule has been given statutory expression under Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides thus :
'The natural guardians of a Hindu Minor, in respect of the minor's person as well as in respect of the minor's property excluding his or her undivided interest in joint familyproperty), are -
(a) in the case of a boy or an unmarried girl the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an un-married girl the mother, and after her, the father;
(c) in the case of a married girl - the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(a) If he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit' order the provisions (vanaprastha) or an ascetic (yati or sanyasi).'
Section 13 also reiterates the well recognised rule of welfare of a minor to be the paramount consideration, thus :-
'(1) In the appointment or declaration of any guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provision of this Act or any law relating to guardianship in marriage among Hindu, If the Court is of opinion that his or her guardianship will not be for the welfare of the minor.'
12. Section 6(a) of the Hindu Minority and Guardianship Act does give an impression that the mother can be considered to bethe natural guardian of the minor only after the lifetime of the father. But it is not disputed and otherwise well settled also that the welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father if necessary, he can be replaced by the mother or any other suitable person by an order of the Court, where to do so would be in the interest of the welfare of the minor. Question, however, arises when the mother acts as the guardian of the minor during the lifetime of the father, without the matter going to the Court, and the validity of such an action is questioned on the ground that she is not the legal guardian of the minor in view of Section 6(a). It is then maintained that she could function as a guardian only after the lifetime of the father and not during his lifetime despite his concurrence. However, such an interpretation violates gender equality, one of the basic principles of our Constitution.
13. The Supreme Court in order to make the provision constitutional interpreted Section 6(a) as would retain it within the constitutional limits. The expression 'father and after him the mother' need not necessarily mean 'after the lifetime'. In the context in which it appears in Section 6(a), it means 'in the absence or, the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly Indifferent to the matters of the minor even if he is living with the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor, either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of a harmonious construction of Section 4 and Section 6 of the Hindu Minority and Guardianship Act without causing any violence to the language of Section 6A of the Act.
13-A. The Supreme Court has also taken into consideration the message of international instruments - the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, in paragraph 14 of the Githa Hariharan (supra) which reads thus (at page 1154 of AIR) :- 'The message of international instruments the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (`CEDAN') and the Beijing Declaration, which directs all State Parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. India is a signatory to CEDAN having accepted and ratified it in June 1993. The interpretation that we have placed on Section 6(a) (supra) gives effect to the principles contained in these instruments. The domestic Courts are under an obligation to give due regard to International conventions and norms for construing domestic laws when there is Inconsistency between them.
14. Not only Section 6(a) but Section 19(b) of the Hindu Minority and Guardianship Act has been construed in the same manner by the Supreme Court in the case of Githa Hariharan (supra). In paragraph 16 of the said Judgment Hon'ble the Supreme Court has held as under:-
'While both the parents are duty bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor because of his physical or/and mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the lifetime of the father.'
15. Beside the question of guardianship the Supreme Court has not dealt with the custody of the minor in the said case. Here it would be pertinent to mention that Section 6(a) of the H.M.C. Act gives right to the mother to have the custody of the minor who has not completed the age of five years, but in case father is not in actual charge of the affairs of the minor because of his inability or any other reason, mother would have the right to look-after the welfare of the minor which includes the emotional well being also. In the formative years not only the education but the parental love and sympathy towards the minor has to be taken into consideration, which cannot be compensated in terms of money being substituted.
16. The submission which has been raised by the learned counsel that only the father is the natural guardian and as per hisdesires two sons shall take education being in the custody of petitioner-husband, is totally devoid of substance. The welfare of the minor is a supreme consideration in such cases and while ordering the custody the principle enunciated under Sections 6 and 13 of the H.M.G. Act which are pre-existing right of the minor and found statutory expressions are to be given effect to while considering the factum of custody of minor under Section 26 of the Hindu Marriage Act.
17. Learned counsel for the applicant placed reliance on the decision In the case of Smt. Chandraprabha v. Premnath Kapur. reported in AIR 1969 Delhi 283 where the Division Bench has considered the matter with respect to the custody of a male child of below five years. In that case it was held that it must never be forgotten to judicially consider the welfare of the minor, for such welfare is the primary and dominant consideration In determining the question of the minor's custody. It was further held that the Court must assess the Intelligent welfare of the minor.
18. Reliance has further been placed on the decision in the case of Rosy Jacob v. Jacob A. Chakramakkal reported in AIR 1973 SC 2090 where the Supreme Court has held that there is a presumption that a minor's parents would do their very best to promote their children's welfare, and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. There is no dischotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances.
In the present case there is no allegation against the mother about cruelty. The Supreme Court in the case of Rosy Jacob has further held that such allegations. In view of the earlier decisions had to be ignored completely while considering the question of custody of the children in the present case. Father's fitness as earning member and head of the family Is not doubted but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, their maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. The case where the family is facing dissolution merely because of father's love to children and Is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish. In the case of Rosy Jacob (supra) it has been further held that children are not mere chatties; nor are they mere playthings for their parents, They are human beings. They have right to 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 right of their respective parents over them. In the said case of Rosy Jacob (supra) it was further held that custody of the daughter and the eldest son should be ordered to be handedover to mother only. It is expected that both the parents are required to cooperate and work harmoniously for their children should feel proud of their parents and (sic) bearing in mind that their children have a right to expect from their parents such a home.
19. Reliance has been placed on the decision in the case of Sheila Umesh Tahiliani v. Soli Phirozshaw Shroff reported in AIR 1981 Bombay 175 where it was held that even conversion to a different faith cannot be regarded as a disqualification for custody of the minor so long as the guardian is capable of providinga congenial, confortable and happy home for the minor.
20. In the case of Smt. Veena Agrawal v. Shri Prahlad Das Agrawal reported in AIR 1976 MP 92 the Division Bench has held that the guardian's claim to the custody of the child is not a right in the nature of property but, indeed, it is a right in the nature of trust for the benefit of the minor. In the case of Suresh Babu v. Madhu reported in AIR 1984 Madras 186 It has been held that the Court Is expected to strike a just and proper balance between the requirements of welfare of the minor child and the rights of the parents over the minor child.
21. In the case of A.V. Venkatakrishnaiah v. S. A. Sathya Kumar reported in AIR 1978 Karnataka 220, it was held that father'sright to the custody of his minor child is no longer absolute; It is circumscribed by the consideration of the welfare of the minor. In view of the principle deduclble on the aforesaid decision it cannot be doubted that paramount consideration is of the minor.
22. Learned counsel for the petitioner has submitted that father is multi milllonare and is well to do person, and he has made all possible arrangements for the education of the children, hence considering the financial status and educational arrangements which the petitioner/husband has made, Impugned order deserves to be set aside. The submissions raised by the learned counsel that the financial arrangements have been made and also the arrangements for education have been made by the father, is not enough to direct the custody of the sons with the petitioner. There is no justification in keeping a tender-aged boy at Burhanpur with the sister of the petitioner. It is obvious that the petitioner is not interested or willing to keep the children at Khandwa with himself for the reasons best known to him that is why he has kept his son Tejinder Singh, aged about 7 years, with his sister at Burhanpur. Khandwa is also a well developed place. If the petitioner was having any love and affection and time to devote for the sons, he would not have left his son Tejindersingh at Burhanpur with his sister. It goes to show that it is due to vengeance, the petitioner has not allowed the mother of the children to keep the custody of Tejindershingh. There is no allegation against the mother about the evil character which is also otherwise a relevant factor as held in the case of Rosy Jacob (supra) and the financial aspect can be taken care of otherwise by the father in the interest of sons as it is an obligation of the father to maintain his offspring and to provide them best education, food, clothes and shelter till they become selfdependent.
23. It may be seen that there is an English Medium School at Amravati where the daughter- Tanvee is taking eduction and father has not at all claimed the custody of daughter, at the same time he has also not kept either of these ones with him. Thus the allegation of the mother that father is having no time for the children is not unfounded. He keeps himself busy in the business and does not find any time to spend with his children.
24. Respondent/wife has further alleged that son Tejindersingh has been removed to Christ Church Jabalpur as mother had once gone to meet him at Khandwa, Another son Manpreet Singh has also been shifted to Burhanpur.
25. Learned counsel for the petitioner submitted that both the sons were called to appear before the Court below and there they expressed willingness to stay with father. It is pertinent to mention here that It is a case where willingness of children has to be In the interest of their welfare. Son Tejindersingh is not being kept by even his father and obviously there appears to be absolutely no reason why the sons would not like to stay with sister Tanvi and mother at Amravatl. There also appears to be no reason why the custody of both the sons should not be handed-over to mother, when they are not in the immediate charge of father. It is the obligation of the petitioner/husband to take care of the welfare of the children,
26. The Supreme Court in the case of Githa Hariharan (supra) while dealing with two cases which led to the adjudication of the constitutional validity of the provisions of Section 6A of the Hindu Minority and Guardianship Act. One was the case in which the Reserve Bank of India has questioned the authority of mother even when she had acted with the concurrence of the father because in its opinion she would function as guardian only after the lifetime of father and not during his lifetime. In another case which the Supreme Court dealt with in Githa Hariharan (Supra) was the case in which the mother wanted to be the guardian of minor, who facing divorce petition filed by her husband. Husband had also claimed the custody of sons in the same proceedings. Thus what has been stated above by the Supreme Court in Githa Hariharan's case (supra) that where the person is not in actual charge of the affairs of minor child because of inability or for any other reason is unable to take care of the minor, mother can act as natural guardian. There is no difference between mother and father under Section 6A of the Hindu Minority and Guardianship Act and preferential right of the things being equal is with the mother to keep the sons particularly in the facts and circumstances of the present case when the father is not having the charge or exclusive control or actual physical capacity of the sons as they are not residing with him.
27. No doubt about it that the financial status of the petitioner/husband is better than respondent/wife. In para 35 of the Githa Hariharan's case (supra) the Supreme Court has held that in equity, a discretionary power has been exercised to control thefather's or guardian's legal rights of the custody, where exercise of such right can not but be termed to be capricious or whimsical in nature and can not be allowed to interfere with the happiness of and the welfare of the child. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded. The factors to be taken into consideration are the position of the parent, the position of the child, the age of the child, the religion of the child, so far as it can be said to have any religion and the happiness of the child. Prima facie, it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up as one may say from its mother's lap in one form of the religion, it would not, alter Its religious views. The Supreme Court has quoted the observations of Lord Esher, M.R. in Gyngall (1893) 2 Q.B. 232 :
'Again, It cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or feelings and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be there by bettered. No wise man would entertain such suggestions as these.'
In Mc Grath Re Lindley L.J. observed : (1893) 1 Ch 143 : 62 LJ Ch 208 :
The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as the physical well-being. Nor can the ties of affection be dis-regarded.'
28. A rigid insistence of Section 6(a) is not warranted in the circumstances adumbrated in the case. Section 13 of the Hindu Minority and Guardianship Act has to be read in context with section 6(a) of the Act and thus the financial status of the father should not come in the way in the instant case.
29. There are certain letters written by son Manpreet Singh to his mother wherein he expressed that he is feeling lonely and no body was available to reside with him. He also expressed that he wanted to reside at Amravati, with his mother and sister Tanvee.
30. Learned counsel for the petitioner has further submitted that under Section 26 of the Act order could not be passed in proceedings under the Guardians and Ward Act. A bare reading of Section 26 of the Hindu Marriage Act envisages that in the matrimonial dispute welfare of the child should be of paramount consideration for both the quarrelling mother and father who are at loggerheads. Their interest cannot be allowed to suffer in the matrimonial proceedings of divorce/ any other proceedings under the Hindu Marriage Act.
31. Since the learned trial Court has observed that it shall be the duty of the mother to see that education of the children should not suffer and both the sons and daughter Tanvee shall be allowed to reside with the father during school days holidays, festivals etc. It has been further observed that it shall be the duty of the father to send them back immediately after the holidays are over. It was further mentioned that it shall be the duty of father to bear the expenses of the education etc. and in the result, the trial court is directed to pass an appropriate order forthwith after herein the parties.
Since the current academic session is coming to an end, the present order shall be implemented after the current academic session is over and both the sons Manpreet Singh and Tejinder Singh can appear In the ensuing examination from the schools where they are studying at present. Trial court is further directed to decide within three months from today after hearing both the parties about the quantum of expenditure to be paid by the petitioner towards both the sons for their education. Petitioner is however entitled to keep the children with him during vacation and then to send them to mother. It is expected from the trial Court to see that the order is not violated. Arrangements should be made by the trial court so that children have the sense of feeling of his father also.
Revision is accordingly dismissed. Parties to bear their own costs.