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1981 Supreme(Bom) 31
IN THE HIGH COURT OF BOMBAY
D.N. Mehta, J.
Sheila Umesh Tahiliani.... Petitioner.
Versus
Soli Phirozshaw Shroff others.... Respondents.
Misc. Petition No. 120 of 1980, decided on 3-2-1981.
Advocates appeared :
Kumari B. Millwalla with A.C. Agarwal, for petitioner.
P.C. Khambhatta with K.P. Khambhatta, for respondents 1, 2 3.
P.S. Sukhia, for respondent No. 4.
The welfare of the minor is the paramount consideration in determining custody, and a mother's conversion to a different religion does not automatically disqualify her from obtaining custody of her child.
Headnote:
GUARDIANSHIP - CUSTODY OF MINOR - RELIGION OF MINOR - WISHES OF DECEASED PARENT - PARAMOUNT CONSIDERATION - WELFARE OF MINOR - SECTION 17, GUARDIANS AND WARDS ACT, 1890 - CONVERSION OF MOTHER FROM ZOROASTRIAN TO HINDUISM - HELD, NOT A DISQUALIFICATION FOR CUSTODY - CUSTODY GRANTED TO MOTHER AFTER A YEAR - INTERIM ARRANGEMENTS FOR ACCESS AND VISITATION RIGHTS.
Fact of the Case:
Petitioner, a Zoroastrian by faith, married Kersi Soli Shroff according to Zoroastrian rites. They had a son, Malcolm. After Kersi's death, the petitioner converted to Hinduism and married Umesh Tahiliani. Respondents 1 and 2 (Kersi's parents) and respondent 3 (petitioner's maternal grandmother) opposed the petitioner's petition for custody of Malcolm, arguing that her conversion, abandonment of guardianship, and the deceased father's wish for Malcolm to be raised in the Zoroastrian faith and as a priest disqualified her.
Finding of the Court:
The court held that the petitioner's conversion to Hinduism did not disentitle her from custody of Malcolm. The court also found that the petitioner was capable of providing a congenial and happy home for Malcolm. However, considering the minor's welfare, the court decided to allow Malcolm to remain in the custody of respondents 1, 2, and 3 for a year, with the petitioner having access to him during specific times and for a fortnight every three months. After a year, the custody of Malcolm would be transferred to the petitioner, with respondents 1, 2, and 3 having access on Saturdays and Sundays.
Issues: 1. Whether the petitioner's conversion from Zoroastrianism to Hinduism disqualified her from obtaining custody of her minor son, Malcolm? 2. Whether the wishes of the deceased father regarding Malcolm's upbringing in the Zoroastrian faith and as a priest should be given paramount consideration? 3. How to balance the mother's natural right to custody with the minor's welfare and the deceased father's wishes?
Ratio Decidendi: 1. The court held that the petitioner's conversion to Hinduism did not disentitle her from custody of Malcolm. The court reasoned that religion is a matter of personal faith and conversion cannot be regarded as a disqualification for custody as long as the guardian is capable of providing a congenial, comfortable, and happy home for the minor. 2. The court held that the wishes of the deceased father regarding Malcolm's upbringing in the Zoroastrian faith and as a priest should be considered, but they are not the paramount consideration. The court stated that the paramount consideration is the welfare of the minor. 3. The court balanced the mother's natural right to custody with the minor's welfare and the deceased father's wishes by granting the petitioner custody of Malcolm after a year, with interim arrangements for access and visitation rights.
Final Decision: The court ordered that Malcolm would remain in the custody of respondents 1, 2, and 3 for a year, with the petitioner having access to him during specific times and for a fortnight every three months. After a year, the custody of Malcolm would be transferred to the petitioner, with respondents 1, 2, and 3 having access on Saturdays and Sundays.
2. Respondents 1 and 2 are the father and mother respectively of the deceased Kersi. Respondent No. 3 is the maternal grand-mother of the petitioner and respondent No. 4 is the father of the petitioner. Shortly after the birth of the minor Malcolm, the petitioner and her deceased husband appear to have separated. On 21st March, 1979 the deceased Kersi left the flat at Andheri where he cohabited with the petitioner and went to reside with his parents respondents 1 and 2. On 18th April, 1979, Kersi took an over-dose of sleeping tablets and died as a result thereof. Between 10th June, 1979 and 7th July, 1979 the petitioner resided with her maternal grand-mother, respondent No. 3 . It appears that the petitioner had been brought up by respondent No. 3 from her childhood. From 7th July, 1979 the petitioner began to reside at her flat at Andheri. At some stage the petitioner, it appears, became friendly with one Umesh Tahiliani whom she later married. It, however, is not clear on the pleadings as to when the acquaintance had begun, whether before or after the death of Kersi, her first husband. That fact, however, is no longer pertinent. What is pertinent is that on the 16th of August, 1979 the petitioner embraced Hindu religion and was married to the said Umesh Tahiliani on the same day according to Hindu Vedic rites at the Arya Samaj, Bombay.
3. Soon after her second marriage, the petitioner went out of Bombay for about three or four weeks along with the said Umesh Tahiliani. During this time, she requested respondent No. 3 to keep her minor son in her custody, which the respondent No. 3 agreed to do.
4. On the 22nd of September, 1979 the petitioner along with the said Umesh Tahiliani went to the residence of respondent No. 3 in order to fetch the minor. According to the petitioner, respondent No. 3 did not allow her as also her newly wedded husband to enter her residence and when asked for the custody of the minor, she informed the petitioner that the minor was at the residence of respondents 1 and 2. The petitioner tried to contact respondent No. 2 on the telephone in order to enquire about the minor, where upon respondent No. 2 disconnected the telephone without giving an answer. The petitioner has now filed this petition praying that she may be declared as the lawful guardian of the person and property of her minor son and to grant the custody of the minor to her. She has also prayed that the respondents be ordered and directed to forthwith deliver custody of the said Malcolm to the petitioner.
5. Shri Agarwal, the learned Advocate appearing on behalf of the petitioner has submitted that the respondents 1, 2 and 3 had wrongfully with held the custody of the minor from his mother who was the natural guardian. Shri Agarwal stated that the opposition of respondents 1, 2 and 3 for with holdings custody of the minor to the mother was based on three grounds. Firstly, on the fact of the conversion of the petitioner from the religion of her birth. Secondly, on the ground that she had abandoned the guardianship of the minor and thirdly on the ground that deceased Kersi had expressed a wish that his son be brought up in the Zoroastrian faith and further that he be brought up to be a priest by profession. Shri Agarwal submitted that proselytism of the petitioner could in no way effect the right of the mother to the custody of her minor son, a submission with which
