Judgment:
ORDER
Dipak Misra, J.
1. In this appeal preferred under Section 19 of the Family Courts Act, 1984 the defensibility of the order dated 19-12-2007 passed by Principal Judge, Family Court, Gwalior in Case No. 7/07 registered under the Guardian and Wards Act, 1890 (for short 'the Act') is called in question.
2. The facts which are necessitous to be exposited for adjudication of the appeal are that the appellant, Smt. Chhotibai Kushwah, preferred an application under Section 8 of the Act before the Family Court, forming the subject-matter of Case No. 6/2007 pleading, inter alia, that Ku. Komal Kushwah, aged about 3 years, has been residing with her for the last two years and has an inseggregable emotional bond with her. On 18-7-2004 the father of Ku. Komal Kushwah expired due to incurable ailment. Before his death Jagesh Kushwah, son of the appellant, had executed a will in favour of his mother and bequeathed all movable and immovable properties. The said will was executed, as set forth, as he had no faith on his wife, the respondent herein. There is an expression of desire in the will that the present appellant would look after and take care of Ku. Komal as his wife, the respondent herein, has been residing in her parental house at Harkota Samadhiya Colony, Gwalior and had no emotional attachment for the minor child. It was asserted in the application filed before the Family Court that the respondent had left the husband knowing fully well that he was suffering from severe ailment and after 1 1/2 years of suffering Jagesh breathed his last. After the death of Jagesh she did not come back to her matrimonial home even to attend the rituals of her husband. It was contended that she is habituated to lead an independent life and had no concern for the minor child and; in fact, she is desirous to enter into a second wedlock. It was put forth that the appellant had been looking after the minor child, Komal, in a most effective and affectionate manner and hence, she is entitled to her custody. It was alleged that the respondent/non-applicant, was desirous for taking custody of the minor child only to grab the property and misuse the same. It was also alleged that the mother-respondent had been leading an unchaste life. On the aforesaid foundation a prayer was made to declare her as guardian ad litem of the minor child.
3. The aforesaid stand and stance of the appellant was vehemently resisted by the wife disputing all the allegations. It was contended that no will at any point of time was executed by her husband and only after his death the will has been fabricated. It is submitted that a civil suit was pending in the Court of Fifth Additional District Judge, Gwalior. It was highlighted that she was capable of looking after and bringing up of the child and she had no intention to enter into the second marriage. Allegations with regard to her character and chastity was seriously disputed. It was also alleged that during the life time of the husband the appellant as well as her husband demanded dowry from her and accordingly an FIR was lodged on 14-5-2004 at Mahila Thana, Hujrat Kotwali and eventually a compromise was entered into between her and husband at Mahila Paramarsh Kendra. It was the case of the respondent before the Family Court that as she was not keeping in good health she had stayed with her parents for six months for proper treatment and thereafter she came to her matrimonial home and lived with her husband. Her husband passed away on 18-4-2004 but no intimation was sent to her. On receipt of the information of death of her husband from others she had come to her matrimonial home next day and participated in the ritual.
4. Be it placed on record, the respondent-Smt. Sunita Kushwah had also filed an application under Section 25 of the Guardian and Wards Act read with Section 6 of the Minority and Guardianship Act before the Family Court wherein she had pleaded about the FIR and the compromise that was effected. She had pleaded that she being the mother and natural guardian was entitled to custody but her mother-in-law, Smt. Chhotibai had forcibly kept the child away from her. It was contended that she was capable of looking after the minor daughter and to give her education. It was her case that her mother-in-law had not bothered to take care of the child by admitting her in a school. It was also put forth that Chhotibai was aged about 65 years and had no income. The aforesaid case filed by the respondent was registered as Case No. 7/07.
5. The learned Family Judge framed three issues and came to hold that the respondent-mother being the natural guardian of the minor child, Komal, is entitled to take custody of the child and that she is capable of maintaining and looking after the minor. The Family Court to arrive at the aforesaid conclusions analysed the evidence and ascribed the reasons to the effect that Chhotibai had not been able to prove that she had sent the child to school; that there are contradictions in the evidence with regard to the Will; that the Will executed by Jagesh was not filed before the Family Court; that she is an old lady and suffers from blood pressure; that the mother is capable of maintaining the child; that she has deposed that she does not intend to marry and lead an unmarried life for the sake of her child; that she is 28 years of age and is in good health; and that Chhotibai had not brought the minor child to Court to prove that she had no emotional attachment with the mother. Being of this view, as has been indicated hereinbefore, the Family Court allowed the application of the wife and rejected that of the mother-in-law.
6. We have heard Mr. Ashok Khedkar, learned Counsel for the appellant and Mr. Raju Sharma along with Ms. Anuradha Singh, Advocate for the respondent.
7. There can be no dispute that the mother is the natural guardian and the minor child ordinarily should be in the custody of the mother, but, while dealing with the facet of custody of the child, the welfare of the child is of paramount consideration.
8. In this context, we may fruitfully refer to the decision rendered in Rosy Jacob v. Jacob A. Chakramakkal, Jacob : [1973]3SCR918 , wherein the Apex Court has expressed the view as follows:.Merely because the father loves his 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, and who, in addition, because if her profession and financial resources maybe in a position to guarantee better health, education and maintenance for them. The children are not mere chattels: nor are they mere play-things 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.
9. In Geetha Hariharan (Ms) and Anr. v. Reserve Bank of India and Anr. : [1999]236ITR380(SC) emphasis has also been laid that the whole tenor of the Act of 1956 is to protect the welfare of the child.
10. Recently in Mausami Moitra Ganguli v. Jayanti Ganguli : AIR2008SC2262 , a two-Judge Bench of the Apex Court has expressed the view thus:
14. 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 obligerate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the backgrounds 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 f actor 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.
11. In the said case, Their Lordships referred to Halsbury's Laws of England (Fourth Edition Vol. 13) pertaining to the custody and maintenance of children which reads as follows:
809. Principles as to custody and upbringing of minors. - Where in any proceedings before any Court, the custody or upbringing or 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 right 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.
12. After so stating Their Lordships took note of the fact that there was nothing on record to suggest that the welfare of the child is in anyway in peril in the hands of the father who had been appointed as custodian by the High Court with certain conditions. In that context Their Lordships further observed about the surrounding atmosphere in causation of emotional strain and depression of a child. Their Lordships further proceeded to state what had happened during the proceedings which we quote with profit:.It is also significant to note that during the course of hearing on one of the dates, when we had not yet interviewed Satyajeet, we had suggested that it would be better if the child could stay with his mother for some more time. However, upon hearing us, he started crying and whining and, showed reluctance to go with the mother. Watching his reaction, we dropped the proposal. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation right to the mother deserves to be maintained.
13. On the touchstone of the aforesaid enunciation of law the factual matrix of the present case is to be tested. At the very outset we may state that on the date of hearing we had asked the parties to remain personally present with the child. The appellant had brought Komal with her. The child being repeatedly asked by us categorically stated that she would like to stay with Smt. Chhotibai, the grand-mother. She articulately stated that she has been prosecuting her studies. On being asked to go with her mother she burst into tears and, in a way, in an uncontrollable manner. The child declined to go with her mother in a most unequivocal manner. Be it noted, the whole proceeding was conducted in camera in presence of the parties along with their respective Counsel.
14. Apart from the aforesaid it is worth noting that the respondent did not have good marital relationship with her husband. There was marital discard as an FIR was lodged in connection with demand of dowry. True it is, there was a compromise, but as we perceive the said efforts did not bring in harmony and compatibility between the spouses. During serious ailment of the husband the respondent did not come to see him. She was away at her parental home on the excuse that she was suffering. We have only stated the aforesaid facts with regard to the emotional bond of the mother with the child. The learned Family Judge, as is manifest from the order, has not really addressed to the core issues but had addressed to the issues which are transient in nature. There is material on record to show that Smt. Chhotibai has good financial status. She has been looking after the child quite well. The child looks quite healthy and happy. Further we are of the considered opinion, that she would suffer immense depression and there may be emotional setback if she is taken away from Smt. Chhotibai. On being questioned we could note that the child has been going to school and has learnt certain things as she could express with certitude and clarity.
15. In view of the aforesaid, we are inclined to direct that the appellant should be appointed as the custodian of the child. However, the respondent, the natural mother, is at liberty to visit the child at the house of Smt. Chhotibai whenever she feels to go and visit the child. The appellant, Smt. Chhotibai, shall allow the child to meet the respondent. Frequency of visit should be more when there will be school vacations or on appropriate occasions which would include festivals.
16. In the result, we allow he appeal and set aside the order passed by the learned Family Judge, dated 19-12-2007 appointing the respondent as custodian of the child Ku. Komal and direct the appellant to be the custodian of the child with the aforementioned conditions. There shall be no order as to costs.