2001 Supreme(SC) 423

2001(2) Supreme 412
SUPREME COURT OF INDIA
(From Madras High Court)
D.P. Mohapatra & Shivaraj V. Patil, JJ.
R.V. Srinath Prasad -Appellant
versus
Nandamuri Jayakrishna & Ors. -Respondents
Civil Appeal No. 1685-1686 of 2001
(Arising out of SLP (C) No. 19395-19396 of 2000)
Decided on 2-3-2001
Counsel for the Parties :
For the Appearing Parties : Shanti Bhushan, Rakesh Dwivedi, P.N. Mishra, K.N. Bhat, Sr. Advocates, A. Raghunath, Ms. S. Vani, Mrs. Sumita Mukherjee, Naveen R. Nath, S. Ravindra Bhat, Advocates.

IMPORTANT POINT
High Court should not have hurried up in changing the interim custody of minor children from his father and grand parents to maternal parents in the facts of this case.

Headnote:Interim Custody of two minor sons of appellant-Application for custody pending in Family Court-Minors in custody of paternal parents-Maternal parents moving High Court for change of custody for doing some rituals of their deceased mother-High Court granting the same-Whether High Court was right in procedure and on facts? (No)-Appeals allowed.

       Held : Custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. At the outset, we would like to observe that it will not be fair and proper for us to delve deep into the merit of the case since the petition filed for custody of the minor children is pending before the Family Court at Hyderabad and any finding recorded or observation made by us in this proceeding may prejudice the parties. Therefore, we will try to avoid entering deep into the merits of the case as far as possible. On a perusal of the judgment/order passed by the Division Bench, we are constrained to observe that neither the manner of disposal of the proceeding nor the order directing the change of custody of the children from their father to their maternal grand-parents can be supported. The Division Bench appears to have lost sight of the factual position that at the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent No.1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately. It is relevant to state here that the respondent No. 1 maternal grand-parents wanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of his deceased daughter and that purpose had been served by the order passed by the learned single Judge and such necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper. The High Court appears to have overlooked the settled principle that custody orders by their nature can never be final; however , before a change is made it must be proved to be in the paramount interest of the children. In a sensitive matter like this no single factor can be taken to be decisive. Neither affluence nor capacity to provide comfortable living should cloud the consideration by the Court. Here we may refer to the decision of this Court in Jai Prakash Khadria v. Shyam Sunder Agarwalla and another, 2000(6) SCC 598. In such matters usually, Courts while granting the custody of minor children to one party extend the facility of visiting them to the other. At the cost of repetition we may state that we are not discussing the merits of the case pleaded by the parties in detail since the application for the custody is pending for adjudication before the Family Court at Hyderabad. For the reasons set forth in the preceding paragraphs we are not persuaded to sustain the order passed by the High Court changing the custody of the minor children from their father to their maternal grand parents. The appeals are allowed. The order passed by the Division Bench dated 16.11.2000 in Writ Appeal No. 1954/2000 and in C.M.P. No. 17059/2000 is set aside. The respondent No.1 shall leave the minor children in the custody of the appellant. He will have the right to visit the children twice a month with prior intimation to the appellant. The appellant shall make necessary arrangements for the purpose. This order is passed without prejudice to the rights and contentions of the parties. There will, however, be no order for costs. (Paras 9, 10, 11, 12 and 13)