IMPORTANT POINT
In the matter of custody of child the paramount consideration should be the welfare of the child and that remarriage of the mother could not be taken as a ground for not granting custody of child to the mother.

Headnote:Guardian and Wards Act—Custody of minor child—Petition by father seeking custody of 11 year old son—Main allegation was that appellant-mother was having illegal intimacy with another person—Decree for divorce in meanwhile was granted in favour of appellant in her petition on ground of cruelty—Trial Court after interviewing the child and considering evidence came to conclusion that for welfare of child custody be given to mother—High Court allowed appeal without giving an opportunity to express willingness of child, only on ground that appellant had remarried—High Court also found that respondent father was a businessman in Soudi Arabia and was more apt and suitable to protect the interest of minor child—Appeal—In an interview with Judges in chamber, child stated that if he was allowed to stay with his mother, that would be better for his education and that mother treated him and the new born baby with same love and affection—Remarriage of mother could not be taken as a ground for not granting custody of child to mother—Paramount consideration should be the welfare of child—Mother was drawing pension of Rs. 6000/- and had land and properties in her name—No finding by High Court that remarriage had adversely affected mental condition of child—High Court committed grave error in not ascertaining wishes of minor—Order of Family Court was liable to be restored—Provision made for respondent to meet and take custody of child during vacation.
       Held : On 16.11.2006, we interviewed the boy in our chambers. The boy who is now 12 years old appears to be a bright boy. He understands the questions put to him and gave apt replies. At the time of interview, it was ascertained that he had no ill-will or hatred towards his father but at the same time, he is not interested in living with the father permanently as he had expressed his willingness to stay with his mother. The minor further stated that if he is allowed to stay with his mother, that is better for his education and she will teach him properly. He also said that the appellant (mother) treats him and the new born baby with same love and affection and there is no discriminatory treatment. He also further said that his step-father also likes him very much and that he, therefore, would prefer to live with his mother which will benefit his education. The boy also said about the re-marriage of the mother and the birth of the child for his mother. At the time of interview, the boy unequivocally deposed that he would continue to live with his mother since the mother is looking after him with all her love and affection. .(Para 11)
       We have carefully perused the orders passed by both the lower Courts and of the High Court. The High Court, before setting aside the concurrent finding passed by the courts below, ought to have interviewed the child before coming to a conclusion that for the welfare of the child the custody should be given to the father..(Para 12)
       We are of the opinion that the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. As already noticed, at the interview, the boy has expressed his willingness and desire to live only with his mother and was admitted by him that the mother will provide him good education. The mother is also drawing pension of Rs.6,000/- p.m. and also having land and properties in her name. When the boy says he prefers to live with his mother, we are of the view that it will be beneficial for the boy and his education for a better future. The High Court, in our opinion, erred in allowing the appeal on the ground of remarriage of the appellant without considering the other aspects of the matter. It is a matter of custody of the child and the paramount consideration should be the welfare of the child. It is not in dispute the boy is living with his mother for the last several years and the separation at this stage will affect the mental condition and the education of the child and considering that the child himself attaches importance to his education if the custody is to be given to the father will now affect his academic brilliance and future. (Para 13)
       The High Court, in our opinion, ought to have seen that the re-marriage cannot be taken as a ground for giving custody of the child. There is also no finding by the High Court that the remarriage has adversely affected the mental condition of the minor child.(Para 14)
       According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.(Para 16)
       The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the childs needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the childs over-all development. (Para 19)
       As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mothers second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. (Para 20)
       The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother.(Para 21)

JUDGMENT

Dr. AR. Lakshmanan, J.—Leave granted.

2. The present appeal is directed against the order of the High Court of Kerala allowing matrimonial appeal for the custody of the child of the respondent by reversing the finding of fact arrived at by the trial Court. The trial Court, after considering the evidence on record and interviewing the child, came to the conclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the respondent-father filed under the Guardians and Wards Act holding that he is not entitled for the custody of the child. On appeal, the High Court reversed the finding of the trial Court and directed to give the custody of the child to the father without interviewing the child. The High Court also permitted the respondent to take the child to Gulf.

BACKGROUND FACTS :

3. The marriage between the appellant and the respondent was solemnized on 31.01.1994 as per Hindu religious rites and customs. Out of the said wedlock, a son, namely, Rohit Vishnu was born and he is 12 years old now. At the time of marriage, the respondent was employed abroad. After marriage the appellant and the respondent lived together for 2½ months and thereafter they lived separately because of the misunderstanding between them. Since the harassment and cruelty of the respondent crossed the extreme extent, the appellant was compelled to file a petition for divorce on the ground of cruelty. The respondent filed a petition for restitution of conjugal rights against the appellant. Thereafter, the respondent filed an original petition under the Guardians and Wards Act for the custody of the 11 years old minor child. The main allegation of the respondent was that the appellant was having illegal intimacy with another person. The second contention was that if the child is in the company of the appellant, it would affect the education of the child. The respondent also contended that he is financially better than the appellant and hence the custody of the child be given to him. The appellant defended the matter and filed a written statement denying all the allegations.

4. In the meantime, the Subordinate Judge passed an ex-parte decree for divorce in favour of the appellant and the petition for restitution of conjugal rights filed by the respondent was dismissed for default.

5. After considering the oral evidence adduced by the parties and examining the documentary evidence and also interviewing the child, the trial Court came to the conclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the father filed under the Guardians and Wards Act.

6. Against the order of the trial Court, the respondent filed an appeal before the High Court of Kerala. The contention of the respondent was that contrary to the deposition made by the appellant before the trial Court that she would not re-marry, immediately after the judgment of the petition filed under the Guardians and Wards Act, she remarried. It is, therefore, contended that the continued custody of the child with the appellant would be detrimental to the interest, progress and welfare of the child.

7. The High Court, without giving an opportunity to express the willingness of the child, allowed the appeal only on the ground of remarriage of the appellant/mother of the child. The High Court also held that the respondent-father is a businessman in Saudi Arabia and the father is more apt and suitable to protect the interest of the minor child and also in imparting education to the required standard of the child. Aggrieved against the order passed by the High Court, the appellant has preferred the above civil appeal. On 21.09.2005, the status quo was ordered by this Court.

8. We heard Mr. P.S. Narasimha, learned counsel for the appellant and Mr. C.S. Rajan, learned senior counsel for the respondent. We have also interviewed the child in our chamber for about an hour.

9. M

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Judicial Analysis

SupremeToday

2006 Supreme(SC) 1147

IMPORTANT POINT In the matter of custody of child the paramount consideration should be the welfare of the child and that remarriage of the mother could not be taken as a ground for not granting custody of child to the mother.

Cases Referred (2)

Judicial Analysis

IMPORTANT POINT
In the matter of custody of child the paramount consideration should be the welfare of the child and that remarriage of the mother could not be taken as a ground for not granting custody of child to the mother.