Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Raj) 1075

RAJASTHAN HIGH COURT
Shiv Kumar Sharma, J.
Smt. Kamlesh Kumari - Appellant
Versus
Laxmi Kant - Respondent
S.B. Civil Misc. Appeal No. 559 of 1995.
Decided On : 27-03-1997

Advocates:
For the Appellant:Mr. B.L. Mandhana, Advocate.
For the Respondent:Mr. Tripurari Sharma, Advocate.

The welfare of the child is the paramount consideration in determining custody, and the mother's right to custody is not absolute.

Headnote:
CUSTODY OF CHILD - WELFARE OF CHILD - SECTION 26 OF THE HINDU MARRIAGE ACT, 1955 - INTERPRETATION AND APPLICATION - COURT'S DISCRETION IN DETERMINING CUSTODY - FACTORS CONSIDERED - WELFARE OF CHILD AS PARAMOUNT CONSIDERATION - MOTHER'S RIGHT TO CUSTODY NOT ABSOLUTE - FATHER'S RIGHT TO CUSTODY - MORAL AND RELIGIOUS WELFARE OF CHILD - WISHES OF CHILD - AGE AND SEX OF CHILD - CHARACTER AND CAPACITY OF PARENTS.
Fact of the Case:

The appellant (wife) and respondent (husband) were married in 1986 and had a daughter, Pooja, in 1987. Differences arose between them, and the wife left the matrimonial home with Pooja when she was nine months old. The husband filed for divorce on the ground of adultery, and an ex parte decree was granted in his favor in 1990. The wife did not challenge the decree. In 1991, the husband filed a petition under Section 26 of the Hindu Marriage Act, 1955, seeking custody of Pooja. The wife opposed the petition, arguing that the court had no jurisdiction to entertain it and that the welfare of the child would be best served by her remaining in her custody.
Finding of the Court:

The court held that the petition was maintainable under Section 26 of the Hindu Marriage Act, even though the divorce decree had already been passed. The court also held that the welfare of the child was the paramount consideration in determining custody, and that the mother's right to custody was not absolute. The court found that the wife had engaged in adulterous conduct, and that this would create a morally harmful environment for Pooja if she were to remain in her custody. The court also found that the husband was capable of providing a stable and loving home for Pooja, and that he had not remarried after the divorce. The court therefore granted custody of Pooja to the husband.
Issues: 1. Whether the court had jurisdiction to entertain the petition under Section 26 of the Hindu Marriage Act, 1955, after the divorce decree had been passed. 2. Whether the welfare of the child was the paramount consideration in determining custody. 3. Whether the mother's right to custody was absolute. 4. Whether the wife's adulterous conduct created a morally harmful environment for Pooja. 5. Whether the husband was capable of providing a stable and loving home for Pooja.
Ratio Decidendi: 1. The court held that Section 26 of the Hindu Marriage Act, 1955, gives the court jurisdiction to make orders regarding the custody of children, even after a divorce decree has been passed. 2. The court held that the welfare of the child is the paramount consideration in determining custody. 3. The court held that the mother's right to custody is not absolute, and that it may be overridden by the welfare of the child. 4. The court found that the wife's adulterous conduct created a morally harmful environment for Pooja, and that this outweighed her right to custody. 5. The court found that the husband was capable of providing a stable and loving home for Pooja, and that he had not remarried after the divorce.
Final Decision: The court dismissed the wife's appeal and granted custody of Pooja to the husband. However, the court left open the possibility for the wife to move the court for modification, alteration, or rescission of the order relating to child custody if circumstances changed.

JUDGMENT

1. - The children are not mere chattels; nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be successful members of the society and the guardian Court in case of a dispute between the mother and father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.These observations were made by the apex Court in Rosy's case, AIR 1973 Supreme Court 2090. In the light of these directions, I proceed to consider the welfare of the minor child Pooja and the rights of her parents Kamlesh Kumari and Laxmi Kant (appellant and respondent in this appeal) over her. Back Ground facts :

2. First the facts. Appellant and respondent were married on May 17, 1986 and Pooja was born on September 3, 1987. Thereafter differences arose between them. Appellant wife (for short wife) with her daughter Pooja who was nine months of age at the relevant time started residing at Sewar in her parental home. The respondent husband. (for short 'husband') instituted a petition for divorce against the wife under Section 13 of the Hindu Marriage Act, 1955 (for short 'Act') on the ground that she was living in adultery. The petition was allowed and an ex parte decree was passed on July 5, 1990. Wife did not file appeal against the said decree. On May 13, 1991 the husband initiated proceedings under Section 26 of the Act seeking custody of minor child Pooja. The wife opposed the application. Learned lower Court framed to issues, one in respect of entitlement of custody of Pooja and another with regard to relief. Husband examined himself whereas wife, in rebuttal, produced herself Brij Dayal (her father) Faili Ram (Sarpanch) and Pooja (minor child). Learned District Judge Bharatpur, vide order dated May 27, 1995 allowed the application of husband and directed the wife to deliver the custody of minor child Pooja to husband within a period of two months from the date of the order. Against the said order the wife has preferred this appeal.Rival Contentions :

3. Mr.B.L. Mandhana, learned Counsel for the appellant wife, canvassed firstly that the court below had no jurisdiction to entertain the petition under Section 26 of the Act as no proceedings were pending before it and the decree for divorce was passed much earlier. The second contention of learned Counsel is that the Court below has not properly considered the welfare of minor child Pooja. For the minor child the husband is like a stranger. He never supplied the child anything of daily need and till date took no interest in the maintenance. Pooja was examined by the Court below where she stated that she was happy with her mother and was looked after very well by her and wanted to live with her mother. Reliance is placed on Mohd. Faruq Larshi v. Smt. Manzar Bano RLW 1986 page 361.

4. On the other hand Mr. Tripurari Sharma, learned Counsel for the respondent husband supported the impugned order and placed reliance on Sudershan Kumar v. Smt. Deepak, AIR 1981 Punjab and Haryana 305; A.R. Munuswamy v. Hansa Rani, AIR 1975 Madras 15; Pooran v. Smt. Angoori, 1976 HLR 801; Prakash Chand Jain v. Smt. Chandrawati Jain, AIR 1996 Rajasthan 162 and Dr. Snehlata Mathur v. Mahendra Narain, RLR 1978 page 554.Maintainability of Petition :

5. I shall first deal with the contention relating to maintainability of the petition under Section 26 of the Act, which runs as follows :

"Custody of children - In any proceeding under this Act, the Court may, from time to time pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance, and education of minor children, consistently with their wishes, whenever possible and may

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1997 Supreme(Raj) 1075

RAJASTHAN HIGH COURTShiv Kumar Sharma, J.Smt. Kamlesh Kumari - AppellantVersusLaxmi Kant - RespondentS.B. Civil Misc. Appeal No. 559 of 1995.Decided On : 27-03-1997

The welfare of the child is the paramount consideration in determining custody, and the mother's right to custody is not absolute.

RAJASTHAN HIGH COURT
Shiv Kumar Sharma, J.
Smt. Kamlesh Kumari - Appellant
Versus
Laxmi Kant - Respondent
S.B. Civil Misc. Appeal No. 559 of 1995.
Decided On : 27-03-1997