2006 Supreme(SC) 139

2006(2) Supreme 169
Supreme Court of India
(From Kerala High Court)
B.P. Singh & Altamas Kabir, JJ.
Sheila B. Das —Appellant
versus
P.R. Sugasree —Respondent
Civil Appeal No. 6626 of 2004
Decided on 17-2-2006
Counsel for the Parties :
Appellant-In-Person
For the Respondent : M.P. Vinod, Sajith and A. Raghunath, Advocates.

Headnote:Guardians and Wards Act, 1890—Sections 7 and 25—Hindu Minority and Guardianship Act, 1956—Section 6—Application by father for custody of minor daughter aged about 12 years—Applicant-respondent; a lawyer by profession, was married to appellant, a paediatrician by profession, in March 1989 and girl child was born in June 1993—Appellant-mother left matrimonial home in Feb., 2000 alongwith child and writ of Habeas Corpus filed by respondent was disposed of in March 2000 upon an undertaking given by appellant to bring the child to place of father—Family Court allowed application of father for custody of child—Appeal—Interview of child by Family Court showed that child preferred to stay with her father—Psychiatrist was appointed by High Court to interview the appellant and respondent to make a pychological evaluation—High Court considering report granted custody of child to respondent—Appeal—Welfare of the minor to be main consideration—Child who was highly intelligent and in a position to make an intelligent choice with regard to her custody, preferred to be with father with who she stated she felt more confortable—Having obtained custody of child respondent did not appear to have neglected the minor—Respondent appeared to be financially stable and found not disqualified in any way from being guardian of minor child—Child had established good relation with sister of respondent, a retired school Headmistress, staying with respondent, and was able to relate to her aunt in the matters which would concern a growing girl during period of adolescence—Interest of minor girl would be best served if she remained with respondent but with sufficient access to appellant to visit the minor at frequent intervals.

       Held : Having regard to the complexities of the situation in which we have been called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence. (Para 29)

       In this case, we see no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child, the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent’s company and has also been doing consistently well in school. The respondent appears to be financially stable and is not also disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials before us and is not sufficient to make the respondent ineligible to act as the guardian of the minor. We, therefore, feel that the interest of the minor will be best served if she remains with the respondent but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by retaining the order passed by the learned Judge of the Family Court at Thrissur on 20.3.2001 while disposing of O.P.No. 193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians and Wards Act, 1890 with the following modifications:-

       1. The respondent shall make arrangements for Ritwika to continue her studies in her present school and to ensure that she is able to take part in extra-curricular activities as well.

       2. The respondent shall meet all the expenses of the minor towards her education, health, care, food and clothing and in the event the appellant also wishes to contribute towards the upbringing of the child, the respondent shall not create any obstruction to and/or prevent the appellant from also making such contribution.

       3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the premises of a mutual friends as may be agreed upon on every second Sunday of the month. To enable the appellant to meet the child, the respondent shall ensure the child’s presence either in his house or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take the child out with her for the day, and to bring her back to the respondent’s house or the premises of the mutual friend within 7.00 P.M. in the evening.

       4. In the event the appellant shifts her residence to the same city where the minor child will be staying, the appellant will, in addition to the above, be entitled to meet the minor on every second Saturday of the month, and, if the child is willing, the appellant will also be entitled to keep the child with her overnight on such Saturday and return her to the respondent’s custody by the following Sunday evening at 7.00 P.M.

       5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at her school once a week after school hours for about an hour.

       6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled between the parties.

       7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to approach the Family Court at Thrissur for fresh directions should the same become necessary on account of changed circumstances. (Paras 30 and 31)