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2008 Supreme(Ori) 352
2009 (II) OLR (SC) — 319
C.K. THAKKER AND D.K. JAIN, JJ.
Nil Ratan Kundu & Anr.... Appellants
Versus
Abhijit Kundu & Anr.... Respondents
CIVIL APPEAL No. 4960 OF 2008
Arising out of Special Leave Petition (Civil) No. 1243 of 2008
Decided on 8th August, 2008.
Headnote:1. CUSTODY - Minor child - Paramount consideration which is required to be kept in view by a Writ Court is 'welfare of the child' and not rights of the parents under the Statute. (Para - 39)
2. CUSTODY - Minor child - Considerations to be made by Court indicated.
In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. (Para - 56)
3. GUARDIANSHIP AND WARDS ACT, 1890 - Sec. 17(3) - Custody of minor - Mother dead - Father or Maternal Grand Parents - Trial Court direction to give the child in custody of father - High Court held the direction of Trial Court proper - Appeal before Apex Court - Paramount consideration is the welfare of the child - In custody cases, wishes of the minor should be ascertained by the Court before deciding as to whom custody should be given - In the present case, on facts and circumstances held, not proper to give custody to his father-respondent.
In the instant case, on overall considerations we are convinced that the Courts below were not right or justified in granting custody of minor Antariksh to Abhijit-respondent herein without applying relevant and well-settled principle of welfare of the child as paramount consideration. The trial Court ought to have ascertained the wishes of Antariksh as to with whom he wanted to stay.
We have called Antariksh in our chamber. To us, he appeared to be quite intelligent. When we asked him whether he wanted to go to his father and to stay with him, he unequivocally refused to go with him or to stay with him. He also stated that he was very happy with his maternal grand-parents and would like to continue to stay with them. We are, therefore, of the considered view that it would not be proper on the facts and in the circumstances to give custody of Antariksh to his father-respondent herein.(Paras - 74, 83 & 84)
Key Points: - The welfare of the child is the paramount consideration in custody decisions, not parental rights. (!) (!) - Courts should consider the child’s wishes or intelligent preference where the child is old enough to form one, and may interview the child to ascertain preferences. (!) (!) (!) - Factors include age, sex, religion of the minor, the guardian’s character and capacity, nearness of kin, and any pending criminal proceedings or allegations against a guardian. (!) (!) (!) - The courts must exercise parens patriae jurisdiction with a humane, human-touch approach, applying welfare over formal legal rights. (!) (!) - Indian statutes (Guardians and Wards Act and Hindu Minority and Guardianship Act) codify welfare as a central criterion and allow considering minor’s wishes if capable. (!) (!) (!)
Question 1?
What is welfare of the minor as the paramount consideration in custody disputes?
Question 2?
What is the appropriate procedure to ascertain a tender-aged child’s wishes in custody determinations?
Question 3?
What factors may disqualify a guardian or influence guardianship decisions under Guardians and Wards Act and Hindu Minority and Guardianship Act?
JUDGMENT
C.K. THAKKER, J. — 1. Leave granted.
2. The present appeal is filed against the judgment and order passed by the Additional District & Sessions Judge, Fast Track, 1st Court, Barasat on July 15, 2006 and confirmed by the High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on December 7, 2007. By the impugned orders, both the Courts below directed handing over custody of minor child Antariksh Kundu to father-Abhijit Kundu, respondent herein.
Factual matrix
3. To understand the controversy in the appeal, it is appropriate if we narrate relevant facts of the case:
4. The appellants herein, (i) Nil Ratan Kundu and (ii) Smt. Kabita Kundu are maternal grand father and grand mother respectively of minor Antariksh, father and mother of deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu-respondent herein. It is the case of the appellants that they had a daughter named Mithu whom they gave in marriage to Abhijit Kundu on August 8, 1995. The marriage was performed according to Hindu rites and ceremonies. Sufficient amount of dowry by way of money, ornaments and other articles was given to the respondent. According to the allegation of the appellants, however, the respondent and his mother were not satisfied with the dowry and they started torturing Mithu for bringing more money from the appellants. On November 18, 1999, a male child-Antariksh was born from the said wedlock. The appellants thought that after the birth of son, torture on Mithu would be stopped. Unfortunately, however, it did not so happen. Mithu was totally neglected and the harassment continued. She became seriously sick. Coming to know about the ill-health of Mithu, the appellants brought her to their house and got admitted her in a nursing home for medical treatment. On being cured, she returned to her matrimonial home, but the demand of dowry persisted and physical and mental cruelty did not stop.
5. In the night of April 9, 2004, as alleged by the appellants, Mithu was brutally assaulted by the respondent and his mother and was brought to a hospital where she was declared dead. Immediately on the next day i.e. on April 10, 2004, appellant No.1 lodged First Information Report (FIR) against the respondent and his mother at Baranagar Police Station which was registered as Case No. 90 for offences punishable under Sections 498A and 304, Indian Penal Code (IPC). The respondent was arrested by the police in that case.
6. On April 18, 2004, custody of Antariksh was handed over to the appellants. Antariksh was found in sick condition from the residence of the respondent. At that time, he was only of five years. It was his maternal grand father-appellant No.1, who maintained the child with utmost love and affection. He was admitted to St. Xavier’s Collegiate School, Kolkata which is a well-known and well-reputed school in the State of West Bengal.
7. After due investigation of the case, on May 31, 2005, police submitted a charge-sheet against the respondent and his mother and the criminal case is pending. After the respondent was enlarged on bail, he filed an application under the Guardians and Wards Act, 1890 (hereinafter referred to as ‘1890 Act’) praying for custody of Antariksh. A reply was filed by the appellants to the said application strongly objecting to the prayer made by the respondent. It was expressly stated in the reply that custody of child Antariksh was given to them when he was found in ailing condition in the house of the respondent. The respondent and his mother had killed their daughter and a criminal case was pending and custody of Antariksh may not be given to the father-respondent.
Trial Court’s order
8. The trial Court, after considering the evidence on record, allowed the application and held that respondent was father and natural guardian of Antariksh and the present and future of Antariksh would be better secured in the custody of respondent. Accordingly it passed an order that custody of Antariksh be ‘immediately’ gi
