Judgment:
Bhagwati Prasad, J.
1. This is anappeal filed by the appellant wife/ mother for the custody of the minor child Vikas against her husband the non-petitioner.
2. A proceeding under S. 47 of the Guardians and Wards Act, 1890 (for short hereinafter as the Act) was instituted by Shri Mahaveer Singh-husband of theappellant and father of minor child Vikas in the Court of District Judge, Sri-Ganganagar. District Judge vide his order dated October 6, 1995 granted custody of the child to Shri Mahaveer Singh. An appeal was filed by the appellant before this Court and a learned single Judge of this Court maintained the order of the learned District Judge, Sri-Ganganagar and granted custody of the child to the father-respondent. It is against these two judgments that the present appeal has been filed by the appellant.
3. Before examining the validity of the judgments in question at the admission stage, the minor child Vikas and her mother, who were present in Court, were interviewed by us. As expected mother was more than keen to retain the custody of the child. The child was interviewed by us at length and he persistently contended that he has to be left with his mother only. His feelings were against his father. He is a boy of more than 10 years and it was thought fit that before any adjudication is made in the matter, father of the child be also summoned. After notice, the father of the child also appeared and we in our chambers interviewed both the parents, child and maternal uncle of the child.
4. Shri Mahaveer Singh-respondent, who is father of the child-Vikas, is a teacher by profession. He lives at Ganganagar and he is teaching in small village near Ganganagar, where he goes daily. According to him, his mother lives with him and his expectation is that while he will be at his duty in the village, his mother i.e. grand mother of the child will take care of the child and he will be able to impart good education to the child at Sri Ganganagar. Appellant-mother of the child lives with her parents. Her brother Vikramjeet was also present with her in the Chambers. She is living at Manniwali, Tehsil Sadulsahar, District Ganganagar. She asserted that she and her son are being adequately supported by her parents. Welfare of the child Vikas is being taken care nicely. He is being sent to the school every day. His education is continuing consistently and without any interruption. She was supported by her brother Vikramjeet, who asserted that healongwith his family are sparing no effort to assist the child and the mother. Even when the appellant got seriously ill at the place of respondent, they got her treatment.
5. Child Vikas was present during the conversation which continued for a long in the Chambers. His wishes were ascertained by us. He has a kind of obstinacy towards his father. He refused to approach his father and his negation continued even when the father tried to draw his attention. May be that, since he had remained away for a long from his father, he could not develop any feelings for him.
6. During the conversation in between the parties, this was revealed that the younger sister of the appellant is married to the younger brother of respondent Mahaveer Singh. They have three children and are living a happy married life. There is no note of discordant in them. It was considered fit that this couple can serve as a connecting link and if father is permitted to meet the child at their residence at intervals, then that would be in the interest of the child. Because apart from mother, child needs the care of the father as well.
7. Parties agreed that as and when Mahaveer Singh would be desirous to see his son Vikas, he would go to the house of his brother, where Vikas would be sent by the appellant to meet the respondent. This would facilitate the father to win over the heart of his son and he will have no reason to suspect any foul play by the family of the appellant. It was conceded by both the parties that this arrangement can be ordered for the present.
8. We in this appeal presently leave the niceties of law aside and as agreed give a chance to the parties to have an arrangement by virtue of which the child, who for no fault of his, has been deprived of the love and affection of the father, gets the same from his father, though his present mental attitude is against his father, but with the frequent meetings at the house of younger brother of the respondent, the blood relationship may turn into an affectionate relationship. Once the child starts to have feelings for hisfather, then it would be appropriate if the question of custody being given to the legal and natural guardian is considered.
9. In the result, we set aside the orders of the Courts below and order that the custody of the child may remain with the mother, but the child will be permitted to be visited by the father at the residence of the younger sister of the appellant and younger brother of the father. This will be on every sunday.
10. The appellant will not in any way create any hurdle or obstruction and will cooperate the visiting father to have his son in his company. In case either parties will have any difficulty then they would be at liberty to make an application to raise their grievance before the learned District Judge, where their other matrimonial dispute is pending and the learned District Judge seized of the matrimonial dispute of the parties would see that the directions of this Court are properly obeyed by both the parties. For the present proceedings under Section 47 of the Act are quashed. The parties will be at liberty to initiate fresh proceedings, if required after the decision of the matrimonial dispute, which is pending before the District Court, Sri Ganganagar.
11. With these observations, the appeal is allowed with the aforesaid directions.
M.G. Mukherji, Actg. C.J.
12.While I agree with the judgment of my learned brother Judge, I wish to make some observations of my own in support of the views made by my learned brother Bhagwati Prasad, J.
13. Under Section 13 of the Hindu Minority and Guardianship Act, 1956 in the matter of appointment of declaration of any person as Guardian in respect of a minor by a Court, the welfare of the minor shall be the paramount consideration and no person shall be entitled to the guardianship by virtue of the provisions of the Statute, if the Court is of the opinion that the guardianship will not be for the welfare of the minor.
14. In between the two extreme propositions between the supremacy of paternal right and supremacy of the welfare principle, wecannot be blind to the fact that the child was all along living with the mother and this cannot be considered to be of no consequence. Adhering to mechanical jurisprudence, the Court cannot ignore the emotional and psychological tremors that would be caused by the uprooting of the child where it had all long grown and to be transplanted to new surroundings.
15. We do not think that the latest in the law appreciates the position that just because the father is a natural guardian, by brute force the child has to be taken away from the mother's affection and be removed to the vigour of father's disciplinary jurisdiction in the name of improvement of education.
16. In Sunil Kumar v. Satirani, reported in AIR 1969 Cal 573, it was observed that the welfare of the child is the paramount consideration and though under Section 19 of the Guardians and Wards Act, a father cannot be deprived of the guardianship of the minor child unless he is found unfit, Section 13 of the Hindu Minority and Guardianship Act makes the welfare of children prima and sole consideration and, therefore, Section 19 of the Guardians and Wards Act has been subordinated to Section 13 of the Hindu Minority and Guardianship Act.
17. In Satyandra Nath v. B. Chakra-borthy, reported in AIR 1981 Cal 206, in a conflict in between the paternal relations and those of the maternal relations where the paternal relations claimed a preferential right, the Calcutta High Court said that it is the welfare of the child which is of paramount consideration and further added that both paternal and maternal relations stood in the same degree of proximity to the child.
18. In this changing role of the Court in respect of the child, we must consciously realise that in these proceedings, there are not only two parties, the husband and the wife, but also a third party i.e. the child and that the third party is the most important party. Hitherto, in guardianship proceedings only two parties were recognized and in matrimonial Court proceedings in respect of children such proceedings were considered asancillary proceedings. There has recently been improvement in English law and several statutes have been passed to give effect to some of the recommendations of the Royal Commission on Marriage and Divorce, 1956, where the status of the child is recognized as a third party. The Matrimonial Proceedings (Children) Act, 1958 which has now been engrafted in the Matrimonial Causes Act, 1973 lays down that a decree nisi for divorce or any other matrimonial relief is not to be made absolute until the Court is satisfied on the report of the Court Welfare Officer that arrangements proposed for the care and upbringing of children are the best that could be devised under the circumstances. The Court's power is now much more extensive in respect of making orders for future care and upbringing of children under its jurisdiction. Once the Court is seized of the jurisdiction, it can adjudicate and pass orders in respect of custody, maintenance and education of children even if the main proceedings are dismissed on merits. Unfortunately, none of the Indian Statutes dealing with the subject including Hindu Marriage Act, 1955 contain any of these provisions despite the fact that our Matrimonial law has drawn heavily from the English Matrimonial law.
19. Regard being had to the facts and circumstances of the case, we have delineated what we thought just and proper and perhaps departed from the shackles of the age old time bound principle of father's hegemony vis-avis his legal rights as Guardian and have condescended about the welfare of the child in a wider perspective.
20. It is indeed true that under the Hindu Law, the father is a natural and lawful guardian of his minor children and under ordinary circumstances, the Court cannot take away that guardianship from him. An application for custody by a Hindu father as natural guardian is one under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Section 25 of the Guardians and Wards Act, 1890 and in passing the order thereon, consideration should be made under Sections 7 and 17 of the latter Act. Even though under Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian of the minor, but the proviso carves an exception laying down that the mother should have the right of custody of the minor up to 5 years, or whenever the Court deems it just and proper. The guardianship is a sacred duty of which the father cannot divest himself even if he wishes to do so. He can of course delegate the performance of the daily duty of looking after the performance of the daily duty of looking after the child to some one and for that purpose, place the child in the custody of some body else. If he does so, when he applies for the restoration of the custody, it becomes a question under Section 25 of the Guardians and Wards Act for the Court to decide, whether it is for the welfare of the minor. In certain cases, Courts do interfere to prevent the revocation of the authority, but there too, the Court ought to be satisfied that it is for the welfare of the child. A Court dealing with such a matter ought to acquaint itself with the surrounding circumstances prevailing in the family and the strained relationship in between the father and the mother and the correct position of law is not that just because he has quarrelled with the mother or distrusted the mother's moral character, the father will be liable to be deprived of the society of his child or the control of his child. The recognized principle is that a father is not only the natural guardian, but has an inalienable right to the custody of his minor son, unless there are overwhelming circumstances to the contrary and a very strong case has to be made out to overrule the right of the father. The Court has however discretion in proper cases to deprive the father of his right to the custody of his child, but still it must be a judicial discretion exercised upon recognized principles. However, such rights of the father are subject to the paramount consideration of welfare of the infant child. The father has generally a legal right to control and direct the education and bringing up of his male child till he attains majority and the Court generally does not interfere with the father's right in the exercise of his paternal authority except (I) where by his gross moral turpitude or rowdy behaviour he forfeits his right; (2) where he has by hisconduct abdicated his paternal authority; and (3) where he seeks to remove his children being wards of Court out of the jurisdiction without consent of the Court. Conduct of parents and wishes of both the parents are matters of primary consideration for the Court in deciding the question of custody or access. But where the child has been living with his maternal relations and the father had not since then even seen him and almost estranged himself and there is no other competent female relation living with the father entitled to take care of the child while on the other hand, the maternal relations have strong affection for the child, the custody of the child is apt to be refused to the father. In a conflict between the father on the one hand and the maternal relations including mother on the other, over the custody of the minor, in view of the welfare of the child which is the paramount consideration, sometimes the Courts have subordinated the father's claim to that of the maternal relations including the mother. Gangabai v. Bherulal, reported in AIR 1976 Raj 153 : 1975 Raj LW 46. In some cases, the mother's custody in preference to that of father was retained. Snehalata Mathur v. Mahendra Narain, reported in AIR 1979 Raj 29 and Khurshid Gauhar v. Siddiqunnissa, reported in AIR 1986 All 314.
21. In certain cases where there has been disagreement between the father and his wife and they are living separate and there are positive allegations against the father that he had adulterous relationship with some other woman and the boy is of tender years, it is not advisable that the boy should be taken away from the tender care of his mother and handed over to his father, who is almost a stranger to him and who is habituated to an extra-marital relations with the other woman. Since the other lady cannot be expected to be very much interested in the welfare of the child, an order under this Section allowing the minor child to remain with his mother instead of with his father is of a temporary character, and if at any time it should appear that the mother is not giving that care and attention to the child which is expected of the mother and is not giving the child a proper education, it will always be open to the father to move the Court for a proper order of custody by takingaway the son on his own custody from the mother. Interference with father's right to custody or access is not contemplated unless father's conduct or act makes it practically essential in consideration of the welfare and safety of the child. Generally, unless it is very flagrant, immorality of the father does not justify such interference as a matter of rule. Interference however will be justified by the Court if actual cruelty of the father either to his wife or to the child is proved.
22. Taking all these aspects into consideration, I am of the considered view, while I agree with the views expressed by my learned brother Bhagwati Prasad, J. that as a temporary measure we should try to establish father's access to the child which could be made by presence of the child in his paternal uncle and/or maternal aunt's house every Sunday, where the father can visit him. Unless a report is established between the father and the son, it would not be to the son's welfare that he should go and live with the father in an in congenial atmosphere, where he may feel himself cut off from the natural care and affection of the mother, which may itself cause a psychological aversion towards the father in a greater degree, and may ultimately cause him mental unrest and lack of concentration in his studies.
23. I think the present arrangement should last for quite sometime till the custody of the child is decided in all finality by the matrimonial Court where the proceedings are pending between the parents of the child. While the proceedings for divorce brought against the mother by the father is decided in ultimate finality, the question of child's custody would be decided over again and till such time, we direct that the custody of the child will remain with the mother, who is now living in her brother's house and the child is being well looked after, not only by the mother, but also by the maternal uncle.
24. With liberty granted to the father of the child to meet the child in the manner indicated above, we reiterate over again that we pass this order regard being had to the minor child Vikas's welfare, which is the paramount consideration of this Court.
25. The special appeal stands allowed accordingly. There will be no order as tocosts.