BOMBAY HIGH COURT
M. S. Sonak, J.
Arwa Taha Saifuddin & Ors. —Petitioners
versus
Taha Mufaddal Saifuddin & Ors. —Respondents
Writ Petition Nos.8231 & 8232 of 2015 and Civil Application Nos.2578 to 2579 of 2015
Decided on 23.12.2015

IMPORTANT POINTS
(1) It is the welfare and interests of the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.
(2) The ‘wishes of the children’ is no doubt, one of the relevant parameters to be taken into consideration. However, this is neither the only parameter nor the paramount consideration.

Headnote:Family Courts Act, 1984 — Section 19 — Child custody — Impugned order passed by Family Court deferred decision on issue of interim custody and access until counselors or child welfare officers held counseling sessions with children and submitted report to the Court — Appeal — Children were in custody of their father pursuant to the order passed by Court at California USA and Court had granted custody for seven days in a month to appellant mother — Appellant’s apprehension was that sessions with counselors for interaction with children in that similar would be merely a force — Counseling process in terms of impugned order commenced counselors submitted report that though circumstances and events affected and influenced the children’s views and feelings towards their mothers bond existed and thus access to mother should be considered favourablty — Court took up interaction with children and found that smaller children were more receptive to prospect of interactions with their mothers — Welfare to the children was paramount consideration — Wishes of children though was one of relevant parameters to be taken into consideration but was not the only consideration — In the facts and circumstances no interference was warranted with impugned order.

       Held: At the request of Taha and Ibrahim, as contained in Civil Application Nos. 2578 and 2579 of 2015, and at the urging of Mr.Lalwani, the learned counsel for Taha and Ibrahim, I interacted with the children for a couple of hours at the Chambers. The interaction with the children was extremely meaningful and illuminating. They are wonderful children, innocent, loving and at the same time resilient, sensitive and quite understanding. The children were absolutely courteous and made sincere and concerted efforts at teaching me to write Arabic. The children are widely traveled and enthralled me with the tales of their journeys. The elder children explained to me some basic tenets of their religious faith and their pilgrimage to Mecca. The elder boys did create an impression that they were comfortable with the present custodial position, but were, by no means hostile, when the topics swerved to their mothers. The elder boys did appear to be under the influence of their fathers, paternal family members, family customs and the position of the family in the community. They were conscious of the rift between the paternal and maternal families for succession to the position of 53rd Dai-ul-Mutlaq. The smaller children, though reeling under similar influence, were however more receptive to the prospect of interactions with their mothers. Overall, the interactions with the wonderful children, left me with the impression that these children, like perhaps any other children, seem to wonder, as to why they have been placed in such a predicament and why they cannot have a normal childhood, a normal family life, abounding in love and care from both their parents.

       The ‘welfare of the children’ or the ‘welfare principle’ remains the paramount consideration in this jurisdiction. This will not be achieved by over emphasizing upon allegations and counter allegations leveled by the parents against each other. The Hon’ble Apex Court in the case of Mousami Moitra Ganguli Vs. Jayant Ganguli, 2008 (7) SCC 673 has held that it is the welfare and interests of the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents.

       Mr. Lalwani has emphasized upon ‘wishes of the children’. His submissions almost suggested that this parameter is paramount in resolution of disputes of custody and access. He relied upon Gaytri Bajaj (supra), as an authority for the proposition that custody and access to the mother, even for a short duration, ought not to be granted, if the children wish otherwise.

       The circumstances in the case of Gaytri Bajaj (supra), were slightly different. The children, in the said case, were aged 17 and 11 years. For considerable period, they had lived away from their mother. The mother had filed terms, in the matter of divorce by mutual consent and had given up custody but retained only visitation rights. After period of three years, the mother instituted a suit for setting aside the consent decree and demanding custody of the children. Even the Hon’ble Apex Court, did not outright reject the claim for custody. As is recorded in paragraph ‘9’ of the judgment and order, the Hon’ble Apex Court, keeping in mind the position of the mother allowed her to make initial contact with the children and gradually built up a relationship, if possible, so as to arrive at a satisfactory solution to the impasse. Interim arrangements were directed, which included overnight custody with the children. Even the Hon’ble Apex Court, by means of personal interaction with the children, made attempts to bring the issue with regard to custody and visitation rights to the satisfactory conclusion. Only after due consideration of the results of all this, the Hon’ble Apex Court, on the basis of materials on record, came to the conclusion that the children one of whom was on the verge of attaining majority did not want to go with the mother. It is in these circumstances that the Hon’ble Apex Court observed that the children having expressed their reluctance to go with the mother, even for a short duration of time, there is no option left but to hold that any visitation rights to the mother would be adverse to the interests of the children. Therefore, Gaytri Bajaj (supra), is not an authority for the proposition that ‘wishes of the children’ is the only consideration or the paramount consideration. The paramount consideration, in terms of the statute as well as numerous authorities of the Hon’ble Apex Court, including Gaytri Bajaj (supra) remains ‘welfare of the children’.

       The ‘wishes of the children’ have to be ascertained in the proper manner and by the proper authority before any decision is based upon them. One of the appropriate ways of ascertaining the ‘wishes of the children’ will be by means of interviews and interactions with skilled Welfare Officers or Counselors. The traditional view is, however, that the decision must be seen to be taken by parents or the Court, so that the responsibility for the decision does not rest with the children.

       Therefore, ig upon cumulative consideration of various parameters and the record the Court is required to act in the children’s best interests. In the exercise of such delicate jurisdiction, the Court cannot abdicate judicial discretion, either to the wishes of the children or even the reports of Counselors or Welfare Officers. No doubt, all these are very relevant parameters. But the ultimate decision has to be made by the Court, in exercise of its judicial discretion. This, no doubt puts a very great responsibility upon the Courts. Therefore, it should be appreciated that it is not possible for the Court, in all situations to deal with what may be ideal for the children, but simply what best can be done in the circumstances presented. (Paras 15, 20, 25, 26, 30 & 32)

       Result: Appeal disposed accordingly.