BOMBAY HIGH COURT
Smt. Vibha Kankanwadi, J.
Ratnamala – Appellant
Versus
Pandurang Udhav Zate – Respondent
First Appeal No.393 of 2021 with Civil Application No.3803 of 2021
Decided on 3.7.2021

IMPORTANT POINT
Custody and guardianship of children – Comfort of child, contentment, health, education, intellectual development and moral as well as ethical values will have to be considered by Court.

Headnote:

Guardians and Wards Act, 1890 – Section 25 – Custody and guardianship of children – Allegations of adultery are not proved by respondent-husband – There was an opportunity for him to prove it by leading appropriate evidence which he has not availed – Comfort of child, contentment, health, education, intellectual development and moral as well as ethical values will have to be considered, but until things are not proved Court cannot presume that there is some unethical, immoral with mother, in present case – Grand parents always love their grand children and they pamper them like anything – They equally give moral education and good treatment, so that child should develop as a good human being – It is universally observed that grand parents protect their grand children more than parents of children – When children were removed by husband from custody of mother and finding has been given to that effect by Trial Judge, application ought not to have been allowed on the ground of so-called paramount consideration of child and a ‘not proved’ allegation of adultery – Procedure that was adopted by Trial Judge was itself wrong – He ought to have given proper opportunity to lead evidence to both sides – Since proper opportunity appears to have not been given to parties to lead evidence, it is necessary to relegate the matter back to Trial Court – In the meantime, till decision of application on its merits, custody of both children deserves to be given to mother.

Held: Another fact, for which definitely objection will have to be taken in respect of the observations in para No.66 of the impugned Judgment, which are in respect of allegations of adultery. It appears that the opponent had produced on record the transcription of the mobile conversation between the applicant and the said person and the copies of their photos showing closeness along with his affidavit. That evidence has been considered by the learned Trial Judge without it was proved in all legal aspects. For the mobile conversation it appears, as there is absolutely no discussion, there was no mandatory certificate under Section 65-B of the Indian Evidence Act. So also, as regards the photos are concerned, it appears that the concerned photographer was not examined and these documents have not been separately exhibited. There was no opportunity to the wife to cross-examine the husband, and therefore, when, though the fact of adultery is alleged and it has not been proved by cogent and conclusive evidence by the husband, the Trial Judge ought not to have even considered it for a sentence also. Further, in para No.68 the learned Judge went on to observe that those allegations regarding relationship of the wife and the said person were not without foundation or reckless. That was a factor, which has been taken by him for considering/deciding the custody of the children. This is totally illegal. When the full-fledged evidence was not led, the Court had not come to the conclusion that the allegations of adultery are proved, merely, because some documents have been produced, it cannot be taken as supporting evidence and then a conclusion can be drawn that wife/mother is not entitled to get custody. It will have to be held that at this stage, in this matter, allegations of adultery are not proved by the husband. There was an opportunity for him to prove it by leading the appropriate evidence, which he has not availed.

The ratio in Nil Ratan Kundu’s case (supra) is also applicable while deciding the custody. Comfort of the child, contentment, health, education, intellectual development and moral as well as ethical values will have to be considered, but until the things are not proved we cannot presume that there is some unethical, immoral with the mother, in the present case.

A child of 6 years may be intelligent, in a way that he/she would be answering all the questions, those have been put, but as regards the choice that he/she was supposed to make between the father and the mother, which itself is a complex question, then the ordinary intelligence alone should not be considered. It will have to be decided as to whether the child is tutored or not. In this case, no doubt, the Trial Judge has stated in the Judgment that he did not find the girl to be tutored. However, it is to be noted from what the observations have been made that the girl told that she was not interested even to talk with her mother and they do not want to go with her because they were ill-treated. It will not be out of place to mention here that this Court also had called the girl on 21.06.2021 and interacted with the girl in child friendly atmosphere in chamber, in presence of the Advocates of both the parties. Since the son is only 2 years old there was absolutely no necessity to ask him about the wish. The tender age itself is sufficient to speak for the reason. Those observations in respect of conversation were noted by this Court in its order on 21.06.2021. Important point to be noted is that when the girl was asked, as to why she does not want to go with the mother, she told that she was assaulted by the mother. Further question, which the learned Trial Judge did not ask, was asked by this Court, as to how many times the mother had assaulted her. Then she told that she was assaulted twice or thrice. Important point to be noted is that definitely the mother if she find that the child is doing some wrong thing, then at some point of time due to anger may assault, but that would be with the intention that the child should not commit such wrong in future. No doubt, it appears that the girl is affectionate to the grand parents and it is obvious. The grand parents always love their grand children and they pamper them like anything. They equally give moral education and good treatment, so that the child should develop as a good human being. It is universally observed that grand parents protect their grand children more than the parents of the children. Whenever parents of the children either scold them or beat them, for any reason, the child immediately goes to the grand parents, where he or she would be consoled. Therefore, the comfortable point is concerned, definitely, the girl would have said that she is more comfortable in that house. However, it is the basic fact, as to whether the girl, who is aged 6, was in a better position to make the choice. When the children were removed by the husband from the custody of the mother and finding has been given to that effect by the learned Trial Judge, the application ought not to have been allowed, on the ground of so called paramount consideration of child and a ‘not proved’ allegation of adultery. Further, in fact, without there being any proper evidence before him, the learned Trial Judge went on to observe that the mother is living separately since April, 2020 due to her behaviour, without taking any interest in the affairs of the children. Therefore, such order deserves to be set aside. The effect of non-filing of appeal challenging the findings of first two points by husband is also required to be considered.

The procedure that was adopted by the learned Trial Judge was itself wrong. He ought to have given proper opportunity to lead the evidence to both sides. The point, which could not have been decided only on the basis of affidavits have been considered in that way. The learned Advocate for respondent though relied on Smriti Madan Kansagra’s case (supra), it can be seen that in that case also there was oral evidence and the parties were allowed to cross examine each other. That means, the procedure that was contemplated was not merely on the basis of the affidavits and this ought to have been considered by the learned Trial Judge. This fact is also observed in Nil Ratan Kundu’s case (supra). At the costs of repetition that the Hon’ble Supreme Court has stated that, “In deciding a difficult and complex question, a Court of law should keep in mind relevant statutes and the rights flowing there from, but such cases cannot be decided solely by interpreting legal provisions.” Thereafter, how the guardian is to be selected has been laid down, and therefore, for proving comfort of the child, contentment, health, education, intellectual development and favourable surroundings etc., an opportunity should be given to the parties to lead evidence. This Court feels that since the proper opportunity appears to have not been given to the parties to lead evidence, it is necessary to relegate the matter back to the Trial Court and in the meantime, till the decision of the said application on its merits, the custody of both the children deserves to be given to the mother. Hence, following order. (Paras 13, 15, 16 and 17)

Result: First Appeal stands Partly allowed and Civil Application allowed.