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IN THE HIGH COURT OF BOMBAY
V.C. Daga, J.
Ashok Shamjibhai Dharod.... Petitioners.
Versus
Neeta Ashok Dharode another.... Respondents.
Writ Petition No. 4868 of 2000, decided on 29-11-2000.
Advocates appeared :
Ms. Rajani Iyer with R.R. Chaurasia, for the petitioner.
N.P. Bhavsar, for respondent No. 1.
Sections 6 and 13-Custody Of Child-Custody of 8 years of minor granted to mother-Welfare of minor is prime consideration for custody matter-Mothers role vital in formative years of child-Mother is first teacher-Father is reported to have not taken any interest in child for years-He has came for childs custody only when petition claiming maintenance is filed.- The paramount consideration governing custody of the child is the welfare of the child and not legal rights of the parties. In normal circumstances natural guardian is entitled to have custody of the minor child and it is father, who has first right to have the custody of the child. However, fathers right to have the custody of the child is neither absolute nor indefeasible. The question regarding the custody of a minor child cannot be decided on the basis of legal rights of the parties. The basic education plays an important role in the formative age of the child. One must understand that education is not literacy alone. Literacy is only a part of it. Education is much more. It is the physical or biological, psychological or mental and the spiritual of ethical growth of child. Only when these three function smoothly, one can say there is education. When viewed from this stand point, one can reach to the conclusion that in the formative years first teacher is the mother. Clean habits can easily be taught by the mother, to the extent it becomes a habit for the child. Interactions with the mother pays rich dividends. Conduct of the father did not indicate that he was interested in the welfare of the child but now the anxiety of the father (petitioner) sees to be to seek custody of the child with a view to avoid payment of maintenance for the child.
Sections 6 and 13-Constitution of India, 1950, Article 227-Grant of custody of child to mother-Writ for-Held-Powers under Article 227 of constitution to be utilised only in cases of grave injustice or dereliction of duty or grave violation of law Article 227 does not provide any appellate or revisional power.-The power of the High Court under Article 227 of the Constitution is restricted to interference in the cases showing grave dereliction of duties or flagrant violation of law and is to be exercised sparingly in cases where grave injustice would be done unless High Court interferes. It cannot be used as appellate or revisional power. While dealing with the matter the writ Court would not be justified in interfering with exercise of discretion solely on the ground that if it had considered the matter at the trial stage, might have come to a contrary conclusion. If conclusions drawn by the trial Court are reasonable and in judicial manner the fact that writ Court would have taken different view at the trial stage, may not justify interference with the orders of the courts below.
Rule returnable forthwith. Respondents waive service.
1. The present petition arises out of the interim order passed by the 3rd Family Court, Mumbai, in M.J. Petition No. A-1853/1997. By the said order the petition moved by the father for removal of minor child from the custody of mother was rejected, maintaining the order of access to the child operating in favour of the petitioner-father. The Family Court's decision is based on the ground that the welfare of the child would be best served by his mother.
In order to test the legality of the impugned order, it is necessary to arrive at the crystalised legal position of law on the subject.
LAW ON THE SUBJECT
2. Law on the subject is almost settled. The paramount consideration governing custody of the child is the welfare of the child and not legal rights of the parties. In normal circumstances natural guardian is entitled to have custody of the minor child and it is father, who has first right to have the custody of the child. However, father's right to have the custody of the child is neither absolute nor indefeasible. The question regarding the custody of a minor child cannot be decided on the basis of legal rights of the parties. The custody of the child has to be decided on the sole and predominant criterion of what would be best and in the interest of the minor child. The mother can be given custody of the minor if the child's welfare or interest requires it, even if father may be fit to act as a guardian.
The issue involving the grant of custody always needs to be decided consistently with the wishes of minor provided it is not a product of tutoring or undue influence.
FACTS IN BRIEF :
3. The following are the facts :
The petition for restitution of conjugal rights was filed by the respondent-wife on 10-11-1997 along with the application for grant of maintenance pendente lite. As a counterblast, the petitioner-husband moved an application claiming custody of the minor child called Harsh from the respondent-wife. The age of the minor child, the victim of a broken marriage is about 8 years. He is taking his primary education. He is in the custody of the mother.
RIVAL CONTENTIONS :
4. The contentions of the parties are as under :
The petitioner-husband urged that the respondent-wife is engaged in the profession of taking tutions. According to him, she is required to leave her home for taking tutions at 7-30 a.m. She returns at about 2 p.m. She is again required to be away from her home, with the result she is not in a position to look after the minor child Harsha. As against this, he submitted that considering his working hours; which are in between 9 a.m. to 12 Noon and 4 p.m. to 10 p.m., he would be in a better position to look after the said minor child. He further submitted that in his absence, his mother and his brother's wife can look after the child. Apart from this, he further urged that his family has extensive accommodation as against the accommodation available with the respondent-wife. In his submission sufficient space would provide better facility and environment to the child for rest and study. He further submitted that good nursery schools are available in the vicinity of his house. In the light of this, he also urged that the child can be shifted to a nearby Nursery school so as to save him from hazards of heavy traffic of the city.
5. In order to meet the aforesaid submissions, the respondent-wife in reply filed an affidavit stating therein that she was taking tuition prior to April 2000. However, presently, she is not engaged in taking tuition classes. Apart from this, she further stated that petitioner-father is engaged in the business of transport and will hardly be in a position to devote any time to look after the child. She further stated that in her absence her mother looks after the child. On her behalf it was urged that considering the tender age of the child, she would be in a better position to look after
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