IMPORTANT POINT
Taking into account the paramount consideration of best safeguarding the interest of the child, the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child held as unwarranted.

Headnote:HINDU LAW-Hindu Marriage Act, 1955-Section 13B-Custody of daughter-Rival claims on divorce by mutual consent-Daughter now aged 9 years is prosecuting her education in a school in city of Bangalore where the parties reside-After obtaining divorce, wife remarried to a famous Cricketer-Family Court noticing that wife is leading a different style of life with her second husband, ordered for giving exclusive custody to natural father with only right of visitation to mother-High Court reversed judgment of Family Court and directed that mother should continue to retain exclusive custody of child-Appeal by father-Child was interviewed twice by Judges of High Court-Child expressed no dislike or negative feelings towards any of her natural parents or her step father-Past conduct of wife and her second husband throughout the proceedings belies apprehension of former husband that child s mind would be poisoned against him-Judgment of the High Court giving exclusive custody of child to mother deserves to be maintained with little modification.
       Held :
        1. The child is, at present, 9 years of age and on advent of puberty. This is the age in which she requires more care and attention of the mother. Mother, at this age of the child, deserves to continue to keep the custody of the female child. She is reported to have given up her service and now leading life of a house-wife. The progress report of Aaruni from the Sophia High School, Bangalore, indicates that she is very good at studies and has a bright educational career.
        2. It is reported that the wife is presently on the family way. The prospect of arrival of the second child in the family of the wife is another circumstance which would be in favour of the present child.
        3. The petitioner lives alone with his father. There are no female members living jointly with him although he may have female relations in the city but that would not ensure constant company, care and attention to the female child.
        4. The petitioner/natural father is a busy Stock Broker allegedly carrying on his business with aid of on-line computer but it cannot be said that in the course of his business, he has not to remain out of residence for attending his office and other business engagements.
        5. The apprehension expressed against the second husband that he might poison the mind of the child and create ill-will towards natural father is not borne out from the evidence on record. On the contrary, the second husband in his deposition has made statements evincing a very cooperative and humane attitude on his part towards the problem of the estranged couple and the child. We find that apprehension expressed against the second husband is without foundation. The parents of the child have separated by mutual consent without making any vicious allegation against each other. They also agreed under the express terms of the consent decree of divorce to take responsibility of bringing up their child as her joint guardians. This gesture of decency and cooperation in jointly looking after the child has to continue. In this mutual agreement of separated couple, on behalf of second husband, it is assured to us that he would continue to give his unreserved cooperation and help and would do nothing as to spoil the relationship or intimacy of the child with the natural father.
        6. The visitation rights given to the natural father, in the present circumstances, also do not require any modification because with the passage of time, the growing child should eagerly wait for the company of his father as a happy and enjoyable moment rather than treat it as a part of empty ritual or duty. To make visitation rights of natural father effective and meaningful for proper growth of the child, active cooperation of both the parents and her step father is expected and we hope it would not be found wanting from any of them.
        7. Since the mother of the child is married to a famous cricketer, as and when she leaves the country on tour with her husband during school days or vacation period of the child without taking the child with her, in stead of leaving the child to the care and custody of some other member of the family, the custody of the child during her absence from her home shall be given to the natural father. (Para 18)

JUDGMENT

Dharmadhikari, J.-Leave granted.

2. In these two appeals, the subject matter of dispute between the married couple, now separated by decree of divorce obtained on mutual consent under the provisions of Hindu Marriage Act, 1955, is their rival claim to the exclusive custody of their daughter - Aaruni who is now little above 9 years of age and is prosecuting her education in a well-known school in the city of Bangalore where the parties reside.

3. After obtaining divorce on mutual consent, the wife - Smt. Chethana Ramatheertha is re-married to Mr. Anil Kumble, a Cricketer of national and international repute. The Family Court of Bangalore by its judgment dated 20.4.2002, after considering the evidence led by the parents of the child, came to the conclusion that as the wife is re-married to a famous cricketer and is leading a different style of life involving frequent tours with her second husband for attending cricket events, there is likelihood of child developing distance and dislike for natural father. The exclusive custody of the child was directed to be given to the natural father with only right of visitations to the mother on every week on Sunday between 10 A.M. to 8 P.M. and to keep the child with her overnight on two Sundays in a month with prior intimation to her former husband.

4. The High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however, taken a different view and reversed the judgment of the Family Court. On the basis of evidence on record, the Division Bench of High Court has formed an opinion that in the absence of compelling reasons and circumstances, the mother cannot be deprived of the company of the child to the detriment of the interest of the child. The High Court, therefore, set aside the judgment of the family court and directed that the mother should continue to retain exclusive custody of the child with visitation rights to her former husband. The former husband is allowed to keep the child on week ends either on Saturday or Sunday from morning till evening and he can also be with the child during half the period of vacations in the school. The stay of child with each of them during half of the vacations, is to be shared by the two parents under mutual agreement. The father is also allowed to visit the child as and when he likes with the prior intimation and mutual arrangements with the mother. The parties are also given liberty to seek necessary modifications in the arrangement evolved by the High Court.

5. For deciding the controversy regarding the custody of the child, only few more facts are relevant and required to be stated.

6. The parties were married in the year 1986 at Mysore and had a married life for more than 12 years. The child - Aaruni was born to them on 7.12.1994. When the child was little about two years old, the wife took a job in Trans Oceanic Travels. Their marriage broke down in the year 1998 when the wife left her matrimonial home and sent a notice through her lawyer that she was unwilling to live with her husband. On a joint petition, filed by the parties in the Family Court for dissolution of marriage by mutual consent, a decree of divorce was passed on 17.4.1999. The separated parents, in accordance with the conditions of divorce by consent, agreed to their appointment as joint guardians with periodic custody of the child. They also agreed to keep the child alternatively in every week. As per the mutual arrangement agreed between the couple, the wife took custody of the child for a week in the year 1999. She soon thereafter got re-married to famous cricketer - Mr. Anil Kumble on 1st July, 1999 and went out of the country with her second husband leaving the child under the custody of her former husband. On return from abroad with her second husband, she filed an application in the Family Court on 12.8.1999 seeking exclusive custody of the child. The Family Court rejected her application and the High Court, in revision, only granted liberty to the partie

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2004 Supreme(SC) 118

IMPORTANT POINTTaking into account the paramount consideration of best safeguarding the interest of the child, the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child held as unwarranted.

IMPORTANT POINT
Taking into account the paramount consideration of best safeguarding the interest of the child, the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child held as unwarranted.