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SUPREME COURT OF INDIA

Page 1 of 33

PETITIONER:

THRITY HOSHIE DOLIKUKA

Vs.

RESPONDENT:

HOSHIAM SHAVAKSHA DOLIKUKA B

DATE OF JUDGMENT04/08/1982

BENCH:

SEN, AMARENDRA NATH (J)

BENCH:

SEN, AMARENDRA NATH (J)

PATHAK, R.S.

CITATION:

1982 AIR 1276 1983 SCR (1) 49

1982 SCC (2) 544 1982 SCALE (1)608

ACT:

Law relating to minor child-custody of the minor

daughter aged 11 years, whether to be with the mother of the

father Duty of the Court-Whether it is obligatory on the

part of the Court to interview the minor for ascertaining

the minor’s wishes and implement the same-Parsi Marriage and

Divorce Act, 1936, Sections 49; Guardians and Wards Act,

1890 : Sections 7 to 17.

HEADNOTE:

The appellant and the respondent belong to the Parsi

community and they were married in Bombay on the 27th

December 1960 according to the rights and ceremonies of the

Zoroastrian religion and custom. A son was born to them on

the 6th of May, 1965 and a daughter on the 18th April, 1971,

whose name is Gospi and aged 11 years. Irreconcilable

difference and embittered relationship between the appellant

and the respondent had led to the filing of Suit No. 14 of

1979. by the appellant mother, for judicial separation.

In the several applications made by the parents for the

custody of the child, the learned judges of the High Court,

before whom the said applications came up for disposals

interviewed the children separately and in the presence of

the parents and passed appropriate and equitable orders,

keeping in the forefront the welfare of the minor children.

The boy bas now become a major as per the Parsi Marriage and

Divorce Act and tho question of his custody does not arise.

The custody of the minor daughter was ultimately given to

the father as per the order of tho Division Bench of the

Bombay High Court dated October 16,1981, Hence the appeal by

the appellant mother, after obtaining Special Leave of the

Court.

Allowing the appeal, the Court.

^

HELD: 1. It is well settled that any matter concerning

a minor, has to be considered and decided only from the

point of view of the welfare and interest of the minor, the

Court has a Special responsibility and it is the duty of the

Court to consider the welfare of the minor and to protect

the minor’s interest. In considering the question of custody

of a minor, the Court has to be guided by the only

consideration of the welfare of the minor. [79 B-D]

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Page 2 of 33

Rosi Jocob v. Jacob A. Chakrammakkal [1973] 3 S.C.R.

918 followed. H

2:1 There is no duty or obligation cast on the part of

the Court to interview the minor for ascertaining the wishes

of the minor before deciding the question

50

of the child custody under section 49 of the Parsi Marriage

and Divorce Act, 1936. [81 F-G]

2:2 It is true that Section 17(3) of the Guardians and

Wards Act, 1890 speaks of the consideration by the court of

the preference of the child "if the minor is old enough to

form an intelligent preference". The instant case, is not

one under the Guardian of Wards Act 1890. [83 B-C]

2:3 However, there cannot be any manner of doubt as the

Court’s power of entertaining any minor for ascertaining the

wishes of the minor, if the Court consider it so necessary

for its own satisfaction in dealing with the question

relating to the custody of the minor. [83 D]

In the facts and circumstances of the case, the minor

is not fit to form an intelligent preference which may be

taken into consideration in deciding her welfare. The report

of the Social Welfare Expert records that the interviews,

the minor girl faced before the several judges cast a gloom

on the sensitive mind of the tender girl and caused a lot of

strain and depression on her. Torn between her love for both

her parents and the acrimonious