IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.03.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL C.M.A.NO.622 OF 2010 AND C.R.P.(NPD) NOS.1598 AND 1599 OF 2009, M.P.NOS.1 AND 2 OF 2009, 1 OF 2010 (2NOS.) AND 2 OF 2010 Dr.Nithya Vidyaprakash .... Appellant in C.M.A. and respondent in both C.R.Ps Vs. B.Suresh Babu .... Respondent in C.M.A. and petitioner in both C.R.Ps Civil Miscellaneous Appeal No.622 of 2010 is filed under Section 47 of Guardian and Wards Act against the Order dated 29.4.2009 made in I.A.No.700 of 2007 in G.O.P.No.1 of 2005 on the file of Family Court, Coimbatore. Civil Revision Petition (NPD) Nos.1598 and 1599 of 2009 are filed under Article 227 of Constitution of India against the Order dated 29.4.2009 made in I.A.Nos.700 of 2007 and 56 of 2009 respectively in G.W.O.P.No.1 of 2005 on the file of Family Court, Coimbatore. For Appellant : Mr.P.V.Balasubramanian in C.M.A. and for for M/s.B.F.S.Legal respondent in both CRPs For Respondent : Mr.N.Panchaksharamurthy In C.M.A. and for for Mr.C.R.Dhasarathan Petitioner in C.R.Ps JUDGMENT R.BANUMATHI,J. The custody of minor child Rahul is the subject matter of dispute in this appeal revisions. Being aggrieved by the order of Family Court in I.A.No.700 of 2007, the Appellant/mother filed C.M.A.No.622 of 2010 seeking to set aside visitation rights to the Respondent. The father has filed Revisions in C.R.P.NPD.Nos.1598 and 1599 of 2009 seeking for custody of minor child Rahul instead of visitation rights. Since common points arise for determination, by consent of both counsels, https://hcservices.ecourts.gov.in/hcservices/ Appeal and Revisions were heard together and disposed of by this common judgment. 2. Even though main point for consideration is as to what is best for the welfare of minor, to appreciate contentious points raised, it is necessary to briefly refer to the factual matrix and background of number of proceedings, which preceded the Appeal and Revision Petitions. Marriage of Appellant and Respondent was solemnised on 18.10.2000 and out of lawful wedlock, male child – Rahul was born on 18.10.2001. Due to differences between spouses, Appellant-Wife filed H.M.O.P.No.695 of 2004 seeking for divorce and Respondent/husband filed application G.W.O.P.No.1 of 2005 seeking for custody of child By the intervention of well-wishers and family friends, a joint memo of compromise was filed by both parties. Based upon the joint memo of compromise, on 23.2.2005, Family Court, Coimbatore passed a decree of divorce in H.M.O.P.NO.695 of 2004 and compromise was recorded in G.W.O.P.No.1 of 2005. As per memo of compromise, custody of minor child Rahul shall remain with the mother viz., Appellant herein and father/ Respondent shall be entitled to visitation rights. As per joint memo of compromise, minor Rahul was with the mother and Respondent exercised his right of visitation. 3. The Respondent re-married one Nikethana on 20.1.2006 and a girl child was born to them on 18.10.2006. According to the Appellant, after 2nd marriage, the attitude of Respondent towards minor child completely changed and only servants and drivers used to come and pick up the minor child and that the child was forced to be in the company of servants of Respondent. The Appellant, a radiologist by profession moved from Coimbatore to Secunderabad along with child after giving due notice to the Respondent and child was admitted in the School at Secunderabad. After Appellant moved to Secunderabad, there were some difficulties in exercise of visitation rights. Alleging that the Respondent has re-married and out of re-marriage girl child was also born and that continuation of visitation rights will not be conducive for the welfare of the child, Appellant filed I.A.No.700 of 2007 to set aside Clauses 2 to 7 – visitation rights contained in the compromise decree. Challenging maintainability of the I.A., Respondent earlier filed C.R.P.Nos.3856 and 3857 of 2007 and the same were disposed by the High Court directing Family Court, Coimbatore to dispose of I.A.No.700 of 2007 within three months. 4. While I.A.NO.700 of 2007 was pending, Respondent filed I.A.No.56 of 2009 seeking custody of the child stating that the minor child has been taken to Secunderabad and put in different environment, which would not be in the welfare of the minor child. He has also filed an application for a joint disposal of both petitions. On 29.4.2009, the Family Court passed a common order in I.A.No.700 of 2007 and I.A.No.56 of 2009 dismissing I.A.No.56 of 2009 filed by the Respondent. Insofar as I.A.NO.700 of 2007 filed by the Appellant it was allowed in part and accordingly, Clause 3 of joint memo of https://hcservices.ecourts.gov.in/hcservices/ compromise dated 23.2.2005 was altered to the effect that "the petitioner shall take charge of the minor child, Rahul, at Hyderabad on every Second Friday at 6 p.m. and after keeping the child on Saturday and Sunday, himself hand over the child on Sunday at 6 p.m in the evening to the respondent." 5. As per the terms of compromise decree, Respondent took child Rahul on 25.4.2009 for the first half of the holidays and as per the terms of compromise, he should have handed over the child on or before 17.5.2009. But the respondent has not handed over custody of the child and thereby violated the terms of compromise. Alleging that the respondent has violated the terms of compromise decree, Appellant filed I.A.No.636 of 2009 before Family Court, Coimbatore to initiate contempt proceedings against the Respondent for violating the orders of the Court. I.A.No.637 of 2009 was filed seeking cancellation of visitation rights. Even while the contempt petitions were pending before the Family Court, Challenging the common order in I.A.No.700 of 2007 and I.A.NO.56 of 2007, Respondent filed the Revision Petitions and obtained an interim order of stay on 24.6.2009. Challenging the order in I.A.No.700 of 2007 declining to set aside the visitation rights, Appellant/mother has filed the C.M.A. 6. Even at the outset, we may note that the parties have arrived at the compromise both in H.M.O.P. as well as in G.W.O.P. While agreeing for dissolution of marriage, the parties have also compromised that the custody of minor shall remain with the mother and father shall be entitled to visitation rights. The relevant terms of memo of compromise reads as under: "1) the custody of minor Rahul shall remain with the mother viz., the respondent herein. 2) The father (Sri Suresh Babu) shall be entitled to visitation rights ...... 3) (a) to (d) .... 4) & 5) .... 6) During emergencies and important occasions, functions, etc., the parties will mutually agree regarding custody and if necessary they can seek the assistance of the Counsel to bring about an amicable agreement on that. 7) The father and mother will have the custody of the child during birthdays of the child as follows:- (a) For the first year, the father will have the custody during Star Birthday and the mother shall have custody during the English Birth day. (b) This arrangement will be altered during the next year i.e., the father will have the custody during the English Birth day and the mother will have custody during the star Birthday of the child and this arrangement shall be continued https://hcservices.ecourts.gov.in/hcservices/ thereafter alternatively. 8) Both parties hereby agree to have the marriage dissolved by a Decree of Divorce by mutual consent and pray that order may be passed by this Hon'ble Court dissolving the marriage by mutual consent. 9) The wife Mrs.Nithya has given up her claims for maintenance, past, present and future and neither party nor their family members shall have any claim against each other on any ground whatsoever......" 7. As pointed out earlier, in I.A.No.700 of 2007, Clause 3 was modified to the effect that the Respondent shall take charge of minor child at Hyderabad on every second Friday at 6.00 P.M and hand over the child on Sunday at 6.00 P.M. 8. Inspite of exhaustive terms of compromise decree, now parties seek for varying terms of compromise. Appellant/Mother, who is having the custody of the child seeks for deletion of visitation rights of father. Respondent/Father, who is presently having only visitation rights, seeks custody of minor child and seeks to set aside the Clause giving custody to the mother. 9. We have heard Mr.Panjaksharamurthy, learned counsel appearing for the Respondent/father and Mr.P.V.Balasubramaniam, learned counsel appearing for the Appellant/mother. 10. The only point falling for our consideration is, what is in the welfare of minor child Rahul. To appreciate the contentions, we may briefly refer to the relevant provisions of Hindu Minority and Guardianship Act, (in short, "H.M.G Act") and Guardians and Wards Act, (in short, "G.W.Act."). Section 17 of G.W.Act provides that in appointment of guardian to a minor child, the welfare of the minor shall be the prime consideration keeping in view the age, sex and religion of the minor. However, in Section 7 of Family Courts Act, it has been indicated that in respect of guardianship, an order would be made only when it is for the welfare of the minor. Section 17 of the G.W.Act provides for matters to be considered by the Court in appointing the guardian. Sub-section (1) provides that subject to the provisions of this section, the Court should consider the law to which the minor is subject and be guided by what appears in the circumstances to be for the welfare of the minor. Sub-section (2) stipulates that in considering what will be for the welfare of the minor, the Court shall have regard for 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 relation of the proposed guardian with the minor or his property. Sub-section (3) empowers the Court in the event the minor is old enough to form an intelligent preference, to consider the preference. Sub-section (3) of this section undoubtedly enables the Court to consider the preference of https://hcservices.ecourts.gov.in/hcservices/ any minor if the minor is old enough to form an intelligent preference. Sub-section (5) prevents the Court from appointing or declaring any guardian against the will of the person. 11. Under Section 19 of G.W.Act, in the case of minor, whose father is living and is not in the opinion of the Court unfit to be the guardian of the person, no guardian can be appointed. Therefore Section 17 lays down that in appointing or declaring the guardian of a person, Court shall be guided by what appears in the circumstances of the case for the welfare of the minor, it does not mean that Section 17 overrides Section 19. Only when the father is unfit to be the guardian, question of welfare of minor comes into consideration. In other words, under Section 17, there is no question of a guardian of minor's person being appointed if the father is alive and is not unfit to be the guardian. 12. Admittedly, the parties are Hindus governed by the H.M.G.Act In our considered view, Section 13 of H.M.G.Act is the most important Section of the Act. Section 13 gives a wide power and that the Courts have power to override all other provisions of the H.M.G.Act as well as G.W.Act. The only criterion for the exercise of the power is the welfare of a child. Unlike English statutes, which uses the word "first and paramount consideration", Section 13 uses the word "welfare of the minor", which shall be the paramount consideration. The omission of the word "first" would indicate that under our Law, the welfare of the minor is the sole consideration. It is not the "first" consideration but the sole and only consideration. 13. Since the H.M.G.Act is supplemental to the G.W.Act, as regards the Hindu children, the courts by virtue of the power conferred by this Act, override all the provisions of the G.W.Act. In fact, the H.M.G.Act has no provisions for the appointment or declaration of guardians. 14. Sub-section (1) of Section 13 makes welfare of the minor as paramount consideration in the appointment or declaration of any person as guardian. This provision clearly indicates that today law of guardianship is not looked upon as a right of power, but as responsibility – responsibility of the parent and guardians towards children, towards their total upbringing so that the child grows into adulthood as a responsible citizen. As a corollary to the paramountcy of the welfare principle enacted in sub-section (1), sub-section (2) say that no person is entitled to guardianship by virtue of the provisions of this statute or any other law if it is not for the welfare of the child. Thus all guardians, natural, testamentary, certificated or marriage guardians, are subject to the principle of paramountcy of the welfare of children. The provision of this section should be understood in the conspectus of section 19 of the G.W.Act which lays down that the father or husband cannot be displaced from the guardianship of the minor unless they are found unfit. This https://hcservices.ecourts.gov.in/hcservices/ section read with Section 4 of the H.M.G.Act clearly entitles the court to ignore the provision of section 19 in the welfare of the child. Even otherwise, in cases coming under the G.W.Act, following English precedents the courts have endeavoured to get over the provision of section 19, in the interest of the child. 15. We would also see that the judicial trend has been clearly in favour of rule of paramountcy of welfare principle than in favour of parental right. Holding that the question of custody of the child must necessarily be considered from the only view point of welfare of the minor child, in (1982) 2 SCC 544 (Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka), the Supreme Court has held as under: "17. The principles of law in relation to the custody of a minor appear to be well-established. 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. In dealing with a matter concerning a 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. 16. In paragraph No.18 of the said judgment, the Supreme Court has held as under: "18. In Halsbury’s Laws of England, 3rd Edn., Vol. 21, the law is succinctly stated in para 428 at pp. 193-94 in the following terms: “428. Infant’s welfare paramount.—In any proceedings before any court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead. Even where the infant is a foreign national, the court, while giving weight to the views of the foreign court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the courts of any other country.” 17. In the case of Rosy Jacob v. Jacob A. Chakramakkal (1973(1 SCC 840= 1973(3) SCR 918) the Supreme Court has observed as under: “… Where, however, family dissolution due to some unavoidable https://hcservices.ecourts.gov.in/hcservices/ circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned Single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds, which we are unable to appreciate. At the Bar reference was made to a number of decided cases on the question of the right of father to be appointed or declared as guardian and to be granted custody of his minor children under Section 25 read with Section 19 of the Guardians and Wards Act. Those decisions were mostly decided on their own peculiar facts. We have, therefore, not considered it necessary to deal with them. To the extent, however, they go against the view we have taken of Section 25 of the Guardians and Wards Act, they must be held to be wrongly decided. 18. While considering the custody of minor child in a writ petition for Habeas corpus, in (2005) 5 SCC 359 Rajesh K. Gupta v. Ram Gopal Agarwala, by referring to decisions viz., Veena Kapoor (Dr.) v Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin v. Dr Rukhsana (2001) 5 SCC 247 : 2001 SCC (Cri) 841 the Supreme Court has held that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. 19. Holding that welfare of child is not to be measured by money alone, but welfare is an all-encompassing word, referring to English decisions, the Supreme Court in DHANWANTI JOSHI VS. MADHAV UNDE, (1997-3-L.W. 161), held as under: "..... Lindley, L.J. in McGrath (infants), Re5 Ch at p. 148 stated that: “... the welfare of the child is not to be measured by money https://hcservices.ecourts.gov.in/hcservices/ alone nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.” 23. As to the “secondary” nature of material considerations, Hardy Boys, J. of the New Zealand Court said in Walker v. Walker & Harrison6 (cited by British Law Commission, Working Paper No. 96, para 6.10): “Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child’s own character, personality and talents.” 20. Observing that welfare of child is not to be examined by physical comfort provided by parties or by spending money, Court must consider moral and spiritual welfare besides other requirements of child, one of us (M.Venugopal,J.), sitting single, in SIVAGOWRI VS R.SWAMINATHAN (2009(1) TLNJ 155 (Civil)) observed as under: "6.It is to be noted that a child is a person within the meaning of Article 21 of the Constitution. Admittedly, a child has a right to its life has guaranteed by Article 21 of the Constitution. As a matter of fact, a minor child cannot express his/her preferences. The paramountcy to the welfare of the child is the governing factor. It cannot be gainsaid that the welfare of the child is not to be measured by the physical comfort provided by a party, by spending money on the child but the Court must consider the moral and spiritual welfare of the child too besides looking into the other requirements of the child. The child's welfare comes first, last and all the time, in the considered opinion of this Court. A Court of Law will have to take into account all facts and circumstances of a given case after keeping both psychological and physical and other needs of a minor child and not the legal right of a particular or other party." 21. Keeping in view the provisions of law and judicial trend in favour of paramountcy of welfare principles, we shall now proceed to examine the contentions. In 2004, when wife filed divorce petition - H.M.O.P.No.695 of 2004, custody of child was also in dispute between the parties and parties have arrived at compromise. In the compromise, parties agreed to dissolve the marriage by a decree of divorce by mutual consent. At the time of compromise, parties have agreed that the custody of minor Rahul to remain with mother and father to have visitation rights. Recording the compromise, compromise decree was https://hcservices.ecourts.gov.in/hcservices/ passed on 23.2.2005. 22. The Appellant has filed I.A.No.700 of 2007 to set aside Clauses 2 to 7 in compromise decree to delete the visitation rights of Respondent-father. At the time of passing compromise decree, minor Rahul was aged only 4 years. Soon after dissolution of marriage, the Respondent re-married one Nikethana on 20.1.2006 and a girl child was born to the Respondent out of the second marriage on 18.10.2006. The contention of Appellant – mother is that after second marriage, the attitude of Respondent towards minor Rahul was changed. The Appellant has filed I.A.No.700 of 2007 seeking to set aside Clauses 2 to 7 of the terms of compromise on the ground that after Respondent's second marriage, his attitude changed towards Rahul and instead of Respondent, his servants and drivers used to come and pick up the child, which is contrary to Clause 5 of the compromise decree. Further case of Appellant is that when the child was taken to week ends, the Respondent was not even present in most part of the time and the child was forced to spend time with servants, which virtually traumatised the child and caused disturbing behavioural pattern and on those grounds, Appellant prayed to set aside Clauses 2 to 7 of the compromise decree in view of the change in the circumstances. 23. Learned counsel appearing for Appellant contended that due to expansion of respondent's business, the Respondent has been widely travelling and hardly finds any time to spend for the child It was further argued that after the second marriage, the respondent's attention was focussed on his second wife and daughter born out of the second marriage and the Respondent's attitude towards minor Rahul entirely changed. In support of his contention, learned counsel for Appellant placed reliance upon (1982) 2 SCC 544 (Thrity Hoshie Dolikuka v.Hoshiam Shavaksha Dolikuka); AIR 2009 SC 557 (Gaurav Nagpal vs. Sumedha Nagpal); (2008) 9 SCC 413 (NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU) and also Rosy Jacob's case (1973(1) SCC 840) 24. The Respondent – father has filed I.A.No.56 of 2009 wherein Respondent prayed for setting aside Clause (1) and prayed for