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High Court Of Delhi
PRABHATI MITRA - Appellant
Versus
D.K.MITRA - Respondent
First Appeal Order 182 of 1983
Decided On : 01/17/1984
CUSTODY OF CHILDREN - MOTHER'S RIGHT - WELFARE OF CHILDREN - PARAMOUNT CONSIDERATION - FATHER'S REMARRIAGE - STEP-MOTHER'S ROLE - CHILDREN'S WISHES - SECTION 26 OF THE HINDU MARRIAGE ACT, 1955 - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant, Smt. Prabhati Mitra, is the mother of the children. The respondent, Shri D. K. Mitra, is their father. Their marriage was dissolved by a decree of divorce passed by this court on 21. 5. 82. There are two children of the marriage. A daughter Sofia alias Bipasha, a girl 14 years of age. She was reading in 8th class in Lady Irwyn School. The other is a son. Raja alias Tanmoy, a boy 11 years of age. He was studying in 5th class in Frank Anthony School.
Finding of the Court:
The learned judge erred in concluding that he should make a peremptory order for the children's return to the father. He should have heard the case on its merits. It is true that the parents ought to be discouraged from taking the law into their own hands. The courts must set their face against kidnapping. If a child is in the mother's care and the father takes it away against her will, the proper course usually will be to restore it to her forthwith in the absence of any evidence that this is likely to harm the child. But the courts are now more anxious to consider the case on its merits. The courts are becoming increasingly reluctant to make peremptory orders and are now much readier to consider the merits.
Issues: 1. Whether the mother is entitled to the custody of the children? 2. Whether the welfare of the children is the paramount consideration? 3. Whether the father's remarriage and the stepmother's role are relevant factors? 4. Whether the children's wishes should be considered? 5. How should Section 26 of the Hindu Marriage Act, 1955 be interpreted and applied in this case?
Ratio Decidendi: 1. The welfare of the children is the paramount consideration in determining custody disputes. 2. The mother is entitled to the custody of the children unless she has forfeited her right by moral or cruel conduct or is seeking to enforce her rights capriciously or arbitrarily. 3. The father's remarriage and the stepmother's role are relevant factors to be considered in determining the children's welfare. 4. The children's wishes should be considered, especially if they are of an age to express an opinion. 5. Section 26 of the Hindu Marriage Act, 1955 gives the court wide powers to make orders and provisions with respect to the custody, maintenance, and education of minor children, and these orders can be varied, suspended, or discharged from time to time.
Final Decision: The order of the Guardian Judge dated 21. 7. 1983 is set aside. The appeal is allowed. The custody of the children will remain with their mother, until further orders. The parties are left to bear their own costs.
( 1 ) THIS unfortunate matter arises out of matrimonial differences. A girl of 14 and a boy of 11 are living with their mother. Their is a contest between the parents as to which should have their care and custody. Each is attacking the other. The guardian judge has decided that the minors should be transferred to the father s control. From that order mother appeals to this court.
( 2 ) THE appellant, Smt. Prabhati Mitra, is the mother of the children. The respondent, Shri D. K. Mitra, is their father. Their marriage was dissolved by a decree of divorce passed by this court on 21. 5. 82. There are two children of the marriage. A daughter Sofia alias Bipasha, a girl 14 years of age. She was reading in 8th class in Lady Irwyn School. The other is a son. Raja alias Tanmoy, a boy 11 years of age. He was studying in 5th class in Frank Anthony School.
( 3 ) UNFORTUNATELY the marriage of the parties came to grief. The mother left the house on 22. 3. 1980. On 25. 7. 1980 she made an application under section 25 of the Guardian and Wards Act for the custody of the two minor children. The father opposed. The application was dismissed for want of prosecution on 24. 8. 1982.
( 4 ) ON 24. 5. 1983 the mother went to the house of the father and met the children in his absence. They narrated their tale of woe to her. Moved by the story of their maltreatment and neglect, she brought them with her without obtaining any orders of the court. On 30th. May, 1983 she made an application to the Guardian Judge staling that when she went to see the children at the house of their father, they started weeping and insisted that she should take them with her as they were not happy in the father s house, She found it unbearably distressing to lew them behind. So the children accompanied her to her house. At present they are with the mother. She produced the children before the judge. They told the judge that they would like to live with the mother. The court allowed her custody of the children till an application is moved by the father.
( 5 ) IT appears that the father had gone out of India during those days. When he returned he did not find the children at home. He immediately made an application under section 151, Code of Civil Procedure statling that the children bad been removed from his custody forcibly and that it is not in the interest of the children to live with their mother. He sought the custody of the minors. By his order dated 21st July, 1983 e Guardian Judge decided this application in favour of the father. He made an order to the mother to hand over the custody of both the children to the father "forthwith".
( 6 ) THE learned judge held that "the mother took the law in her own hands and removed the children from the custody of the father in his absence and such a course adopted by the mother cannot have any legal sanction. " He was of the view that "the custody of the children with the mother is absolutely illegal". From this order granting custody to the father, the mother appeals to this court.
( 7 ) IT appears to me that the learned judge did not decide the case on merits. He mainly held that the wife had kidnapped the children from the legal custody of the father who was not unfit to retain their custody and therefore the children must be restored to the custody of the father. That is why at the end of his judgment he observed that it was open to the mother to claim custody and "she can apply afresh for obtaining custody of the children under the provisions of Guardians and Wards Act" or by reviving the earlier proceedings she had launched in 1980.
( 8 ) IN the very beginning when I started hearing the appeal I told counsel for both parties that I will decide the case on merits and they can adduce such evidence before me as they thought proper. The parties have given evidence by affidavits. I have heard arguments at length. Written arguments have also been submitted by both parties.
( 9 ) IN my opinion the learned
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