L.MOHAPATRA, J & S.K.MISHRA, J. MATA NO.3 OF 2011 (Decided on 05.08.2011) SHYAMA PRASAD TRIPATHY & ORS. ……..Appellants. .Vrs. AISHWARYA SATPATHY ………Respondent. HINDU MINORITY & GUARDIANSHIP ACT, 1956 (ACT NO.32 OF 1956) – Ss.6(a) For Appellants - M/s. Manas Mohapatra, L.N.Sahoo, S.K.Routray, S.Mohanty. For Respondent - M/s. Srikanta Kumar Sahoo, M.Mohapatra & B.B.Biswal. [ S.K.MISHRA,J. In this appeal, the appellants assail the order dated 18th May, 2010 passed by learned District Judge, Khurda at Bhubaneswar in Guardian Petition No.208/2008 declaring that the respondent-mother is entitled to have the custody of her son. The facts leading to filling of this appeal may be stated as follows:- The respondent filed a petition before the learned District Judge, Khurda, inter alia, pleading that she and appellant no.1 got married on 06.12.2000, which was duly registered. The couple led a happy conjugal life in the house of the appellants for some days. The respondent thereafter stayed at her place of posting in Chennai for about more than a year and appellant no.1 went to U.S.A. to his place of posting. Later they came to Bangalore, where they spent happy days together. They stayed in Bangalore for seven years. 2. During this period dissensions grew up between the parties. Appellant no.1 demanded a sum of Rs.10 lakhs from the respondent and when she was not able to comply with the same, she was ill-treated and tortured physically and mentally. It is further pleaded that initially the respondent was getting more salary than appellant no.1. She was meeting most of their expenses and appellant no.1 used to give his entire income to his parents for their maintenance and education of his brothers and sisters. On 11.5.2007 the child Arindam was born. During her pregnancy the respondent had lot of complications for which huge expenses were incurred. It is further pleaded that even though the respondent bore all such expenses, appellant no.1 was annoyed with the same. After birth of the child, the attitude of the appellants became hostile to the respondent and he started ill-treating her more and more. Appellant No.1 and his parents did not take proper care of the child. 3. In the year 2008 appellant no.1 decided to quit the job and take up the business of a builder at Bhubaneswar, which required huge investment. Therefore, appellant no.1 demanded a sum of Rs.20 lakhs from the respondent. When the respondent failed to oblige, appellant no.1 and his parents ill-treated her. Ultimately on 31.5.2008 at about 9.30 P.M., appellant no.1 brutally assaulted the respondent, snatched away the child and drove her away. The child was a breast feeding baby and was thirteen months old at that time. The respondent took shelter in the night in a friend’s house and in the next morning she came away to Bhubaneswar to her parents’ house. Thereafter, on 17.6.2008 respondent wrote a letter to appellant no.1 requesting him to handover the child to her. Thereafter, on several occasions the respondent requested appellant no.1 to handover the child to her over phone, but appellant no.1, on the other hand, threatened to kill the child if the demand was not fulfilled and did not allow her to see the child. 4. In June, 2008 appellant no.1 came to Bhubaneswar with the child and stayed with his parents. On 14.6.2008 the respondent went to their house and requested them to return the child to her. They did not return the child and behaved her in a rude manner. In the same year the respondent filed a writ petition being W.P.(Crl) No.338 of 2008 before this Court to get back the custody of the child. This Court directed respondent no.1 to pursue her remedy under the Guardians and Wards Act. When the respondent was at Bhubaneswar and demanded the custody of the child, appellant no.1 and his parents forced her for a divorce. Thereafter the respondent filed a case for custody of the child claiming to be the natural guardian and rightful custodian of the boy Arindam. 5. The appellants, who were opposite parties before the court of original jurisdiction, denying all the allegations made by the respondent, inter alia, pleaded that the respondent never liked to bear a child. She was a careerist. She did not like to quit her job under any circumstances. She even did not join her husband when he was in U.S.A. It is further pleaded that she has terminated her pregnancy on two occasions earlier and it was the appellant no.1, who used to comprise on this. 6. Appellant no.1 further pleaded that he had a high salary job and was quite affluent. He had purchased a flat at Bangalore. When the child was born on 11.5.2007 the respondent never took any care of the child. Appellant no.1 had to look after the child and had to hire the service of a nurse. In October, 2007 appellant no.1 had been to U.S.A. for twelve days. During this period the respondent put the child in a child care home. The child was only three months old at that time. The appellants further pleaded that on 31.5.2008 the respondent herself left the marital home deserting the child and lived in a nearby hotel without informing them and in the following morning she left for Bhubaneswar along with all her certificates, jewellery, laptop and keys of the locker of the Bank with full preparation to harass the appellants. It is further pleaded that in June, 2008 when appellant no.1 came to Bhubaneswar, the respondent had come to their house, where she had clearly stated that she will not stay in their house. It is further alleged by the appellants that the respondent was dominating in nature. Her sisters even did not live in their in-laws house and preferred to live with their parents. Appellant No.1 further claims that due to the attitude of the respondent towards the child he had to resign from his 2 service at Bangalore and come away to Bhubaneswar. The appellants claim that the child is fully comfortable with them and they are the only fit persons to take care of the child and his future. Hence, they prayed that the petition for custody be rejected. 7. On such pleadings, the parties went to trial and examined witnesses in support of their claims. They also led certain documents into evidence. Having assessed the evidence on record and the law on the point, the court of original jurisdiction come to the conclusion that the respondent should have the custody of the child and therefore it allowed the petition on contest. The appellants however did not comply the orders passed by the learned District Judge, Khurda and, therefore, the respondent filed an application before the Judge, Family Court, Bhubaneswar, which was registered as C.M.Appeal No.134/2010. On 13.1.2011, the Judge, Family Court, Bhubaneswar, directed appellant no.1 to comply with the order passed by the learned District Judge, Bhubaneswar. Against such order a writ petition was filed. At the time of admission an application was filed to convert the writ petition to an appeal under the Family Courts’ Act and as such it was registered as MATA No.3 of 2011. Thereafter, since the appeal was not within the period of limitation prescribed, appellant no.1 filed an application for condonation of delay, which was allowed on 30.3.2011(Misc. Case No.30/2011). 8. In assailing the order passed by the learned District Judge, Khurda, Mr. Manas Mohapatra, learned counsel for the appellants, submitted that the learned Judge exercising the original jurisdiction committed gross error on record and without taking into consideration the welfare of the child has passed this particular order. Mr. Mohapatra argued at length to show to the court that the conduct of the respondent is not conducive to the welfare of the child and, therefore, the custody should be given to the appellants. 9. Learned counsel for the respondent, on the other hand, submitted that the learned trial court has not committed any error on record and the conclusion arrived at is just and proper and, therefore, it requires no interference. 10. Admittedly, the parties are Hindus and are guided by Hindu Minority and Guardianship Act, 1956(hereinafter referred to as the “Act” for brevity). Section-6 of the Act is quoted herein below: “6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father; 3 (c) in the case of a married girl – the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section – (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation – In this section, the expressions “father” and “mother” do not include a step-father and step-mother. A bare reading of the aforesaid Section reveals that it is the father, who is the natural guardian of a boy and an unmarried girl, and only after him, the mother is the natural guardian. But it is with a rider. The rider is that the custody of a minor, who has not completed the age of five years, shall ordinarily stay with the mother. Section 13 of the Act provides that the welfare of the minor is of paramount consideration, it reads as follows:- “13. Welfare of minor to be paramount consideration–(1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor”. 11. Interpreting these provisions, the Supreme Court, in the case of Ms. Githa Hariharan and another vrs. Reserve Bank of India and another reported in AIR 1999 SUPREME COURT 1149, has considered the implication of the of Section 6(a) of the Act and ruled that Section 6(a) is capable of such construction as would retain it within the constitutional limits. The word “after” need not necessarily mean “after the lifetime”. In the context in which it appears in Section 6(a), it means “in absence of”, the word “absence” therein referring to the father’s absence from the care of the minors property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor or even if he is living with the mother of if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognized natural guardian can act 4 validly on behalf of the minor as the guardian. The Supreme Court held that such an interpretation will be the natural outcome of a harmonious construction of Sections 4 and 6 of the Act. Moreover, Section 25 of the Guardian and Wards Act,1890 specifically provides that if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, it will make an order of his restoration. Thus, while deciding the claim under Section 25 of the Act, the welfare of the child has to be looked into and the claim of the custody of wife cannot be ignored or denied only on the ground that husband is natural guardian under Section 6(a) of the Act. 12. Section 17 of the Guardians and Wards Act, 1890 provides for the matter to be considered by the Court in such cases. It reads as follows:- “17. Matters to be considered by the Court in appointing guardian – (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4) * * * * * * * * * * * * * * * * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will”. Interpreting this provision, this Court in the case of Smt. Meera Devi vrs. Shyamsundar Agarwalla reported in AIR 1985, ORISSA, 65 has held that it is open to the Court to make any arrangement relating to the minor which he considers to be in the best interest of the minor and in such a case it is the welfare of the minor which alone is the foremost consideration and not the rights of the parents. Neither the father nor the mother has an indefeasible right to have the custody of the minor or to decide his future as he or she likes. Thus, the law on the point can be summarized as follows:- 5 In case of a Hindu minor boy or a unmarried girl, the natural guardian is the father. But, if it is found that he is not capable of taking care of the ward then the mother is the natural guardian. However, in cases of children below five years of age, it is the mother, who should have the custody of the child. Such provision has been inserted only because of the reason that in the young age it is the mother, who can cater to the needs of a child better than the father. But the most important consideration while deciding the case of this nature is the welfare of the child, which is of paramount importance. From such provision, it can naturally be derived that in case of a child, who is less than five years, unless there are some exceptional and compelling reasons, the custody should not ordinarily be given to the father. Keeping in view the aforesaid considerations, we have to examine the evidence on record to arrive at a just conclusion. 13. It transpires from the evidence of the respondent that appellant no.1 has left the job and he has no financial stability to take care of the child, whereas the respondent has monthly income of more than Rs.50,000/- from her salary and except the child she has no other dependant. She further explained that she is serving as Advisory System Analyst in IBM Global Services, Bangalore, which has the option of flexible working timings including working from home and from other places in India for women employees. In cross-examination she admitted that prior to birth of Arindam she terminated her pregnancy twice. She further admitted that she was staying alone in Chennai when appellant no.1 had left for U.S.A. She has also admitted that her son Arindam is staying with her husband and parents-in-law at Bhubaneswar. It is further found from her evidence that she had admitted Arindam to a Play School when he was two years and five months old even though she was working from home at that time and since the school hours were only for two hours a day and the child had to learn certain things. 14. Appellant no.1 in his evidence has stated that the child was never under breast-feeding and was disengaged to have gluten sensitive enteropathy and secondary lactose intolerance. He further stated that respondent always avoided to bear a child and had two abortions against his consent. Appellant no.1 has further stated that the careless attitude of the respondent towards marital life, family and the child forced him to leave his lucrative job only to take care of his family and the child. He stated that at present he was the owner of the franchise of the Cox and Kings for Bhubaneswar and earning Rs.50,000/- per month. Therefore, he claimed that he can take care of the child without any problem. 15. From the undisputed evidence on record, it is clear that the respondent is working in IBM and getting substantial amount as salary and has no other liability on her. It is also clear that she is staying there alone and there is nobody else to look after the child in case of her absence. Though there is flexibility of working from home the same do not appear to be adequate enough to come to a conclusion that she will be in a position to devote 24 hours to take care of her child. On the contrary appellant no.1 is engaged in business and is staying with his parents. Therefore, in the absence of appellant no.1, other two appellants are there to look after the child and the child can be attended to 24 hours a day. Another fact, though not taken into consideration by the learned District Judge is that the respondent has terminated her pregnancy twice prior to 6 birth of Arindam. It is not her case that such termination of pregnancy was caused because of medical complicacies. This past conduct though is not the sole criteria to determine the attitude of the respondent towards her family, but is indicative of her attitude towards rising a family. Further more, when she was residing at Chennai alone, the child was less than three years of age and she admitted him to a Play School, which does not appear to be reasonable to us. Admittedly, we find that the child is with the appellants for the last two years, at Bhubaneswar and, therefore, it can safely be presumed that he has accustomed with the life style of Bhubaneswar with his father and grand parents and at this juncture passing an order to remove him from Bhubaneswar to Bangalore will have an adverse psychological impact on the minor child. Though Section 6(a) of the Act provides that the custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother, we come to the conclusion that in this case for the betterment and welfare of the child, he should remain with his father. It is also noted that since the child is suffering from gluten sensitive enteropathy and secondary lactose intolerance he is not a suckling baby and the mother, who is living alone in a big city, is not in a better position than his father, who is residing in the native State along with his other family members. So this Court comes to the conclusion that the judgment passed by the learned District Judge, Khurda is not sustainable. 16. We, therefore, allow the appeal, set aside the order passed by learned District Judge, Khurda and direct that the child-Arindam shall be in the custody of appellant no.1-father during his school days. It is further directed that he will be in the custody of the mother-respondent during long vacations. No costs. Accordingly, the MATA stands disposed of. Appeal allowed. 7