-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.29 OF 2007 FAMILY COURT APPEAL NO.29 OF 2007 FAMILY COURT APPEAL NO.29 OF 2007 Mohan Kumar Rayana .. Appellant. Vs. Komal Mohan Rayana .. Respondent. WITH WITH WITH FAMILY COURT APPEAL NO.61 OF 2007 FAMILY COURT APPEAL NO.61 OF 2007 FAMILY COURT APPEAL NO.61 OF 2007 Komal Mohan Rayana .. Appellant. Vs. Mohan Kumar Rayana .. Respondent. Mr.J.P.Cama. Senior Counsel, Mr.Kevic Setalvad, Mr.Kave Tamboli, Mr.S.Srivastava & Mr.Umang Jagu, i/b D.H.Law Associates for the Appellant in FCA No.29/2007 and for -2- the Respondent in FCA No.61/2007. Mr.Anand Grover, Counsel, with Ms.Firdaus Mossa i/b Prakash Mahadik for the Respondent in FCA No.29/2007 and for the Appellant in FCA No.61/2007. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE OF RESERVING THE JUDGMENT : DATE OF RESERVING THE JUDGMENT : DATE OF RESERVING THE JUDGMENT : 28TH NOVEMBER,2008. 28TH NOVEMBER,2008. 28TH NOVEMBER,2008. DATE OF PRONOUNCING THE JUDGMENT: 16TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT: 16TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT: 16TH JANUARY, 2009. JUDGMENT : (PER D.B.BHOSALE, J.) JUDGMENT : (PER D.B.BHOSALE, J.) JUDGMENT : (PER D.B.BHOSALE, J.) 1. These Appeals are directed against a common judgment and order dated 2nd February, 2007, rendered by the Family Court disposing of two petitions being Petition No.D-65/2005 and D-66/2005 filed by the respondent-wife and the appellant-husband respectively seeking custody of their daughter Anisha. By the impugned judgment the Family Court has directed the appellant to handover custody of Anisha to the respondent immediately on completion of her final terms of the academic session 2006-07 and to provide her all facilities to enjoy extra curricular activities and studies so also to meet all the expenses including food and clothings. The appellant is given access to Anisha every alternate weekends and share 50% of her school vacations, as per mutual agreement with the respondent. The parties were also given directions to consult each other on the questions of Anisha’s further academic -3- education. . Family Court Appeal No. 29 of 2007 has been filed by the husband (hereinafter referred as "the appellant") being aggrieved by the change of custody of Anisha from the appellant to the respondent-wife, who has also filed Family Court Appeal No.61 of 2007. The appeal filed by the respondent-wife challenges the order of access on every alternate weekends and to share 50% of the school vacations with the appellant. For the sake of convenience, the wife is being referred to as "the respondent". 2. It appears that this litigation had reached the Supreme Court against several orders passed by this court at different stages of the proceedings. We do not wish to make reference to all those orders which were impugned before the Supreme Court as they may not be relevant for deciding the instant appeals on merits. However, it would not be out of place to make reference to the order of the Supreme Court dated 1.11.2007 disposing of Civil Appeal Nos.5088-5097 of 2007 arising out of S.L.P. (C) Nos.15167-15176 of 2007. All these appeals were filed by the appellant challenging the orders dated 12.7.2007, 19.7.2007, 27.7.2007 and -4- 6.8.2007 passed by this court. The Supreme Court disposed of those appeals with the following directions: "(i) Since the welfare of a minor child is involved, the High Court is requested to try and dispose of the pending appeals as expeditiously as possible, but preferably within three months from the date of communication of this order; (ii) The appellant/father of the minor, will be entitled to have access to Anisha on weekends on Saturdays and Sundays and will be entitled, if the child is willing, to keep her with him on Saturday night. For the said purpose, the appellant shall receive the child from the respondent at 10.00 a.m. on Saturday from her residence at Bandra or from a mutually agreed upon venue and shall return the child to the respondent on Sunday by 2.00 p.m. In the event Anisha is unwilling to stay with the appellant overnight, the appellant will then make her over to the respondent on Saturday itself by 9.00 p.m.; in that case, the appellant will be entitled to take Anisha out on Sunday also between 9.00 a.m. to 5.00 p.m.; (iii) Both the appellant as well as the respondent must co-operate with each other in making the aforesaid arrangements work. The respondent shall not prevent the appellant from having access to Anisha in the manner indicate above. Likewise, once Anisha is handed over to the appellant he too must honour the aforesaid arrangements and not keep Anisha with him beyond the time stipulated. In the event of either of the parties violating the aforesaid arrangement, the other party would be at liberty to pray for appropriate orders before the Bombay High Court in the pending appeals; -5- (iv) The aforesaid arrangement is being made so that the appellant can have access to his minor daughter and also to ensure that the child’s education does not suffer in any way during the week." . It is against this backdrop the instant appeals are placed before us for final disposal. 3. We do not propose to narrate the facts in detail at this stage since we may have to make reference to the facts in the course of this judgment. The basic facts to the extent as may be necessary to be mentioned at this stage are as follows: The appellant-father and the respondent-mother tied nuptial knot at Hyderabad on 11th August, 2000 according to Hindu rites and after their marriage they moved to their matrimonial home at Chembur, Mumbai. The daughter - Anisha was born to them on 2nd March, 2002. Initially, there were no disputes as such between the parties but after Anisha’s birth, according to the respondent, atmosphere in the matrimonial home began to change and it was due to the behaviour of the appellant towards her on account of addiction to alcohol in the company of his friends. In June 2004, Anisha was admitted to a play school at Chembur, Mumbai. At one stage, in view of marital discord, according to the appellant, the mother -6- allegedly abandoned the matrimonial home. That happened in July 2004. As per the appellant, the respondent abandoned the matrimonial home and Anisha and sought shelter with her parents in Bandra, whereas according to the respondent, she left the matrimonial home in July 2004 with her daughter and she continued to send Anisha to Kinder campus school at Chembur, the area where the father was residing, and permitted him on occasions to keep back Anisha at his residence. According to the respondent in October 2005, taking advantage of such a situation, the appellant kept Anisha back with him and did not return her to the respondent. That compelled the respondent to meet Anisha in the school campus, but since that arrangement did not work in the last week of November 2005, she approached the Chembur police station and with their help got back the custody of Anisha. It is alleged that on 30th November, 2005 the appellant, with the help of some of his associates, forcibly removed Anisha from the respondent’s custody and made completely inaccessible to the respondent. It is in such compelling circumstances the respondent - mother moved the Family Court seeking custody of the minor daughter under section 6 of the Hindu Minority and Guardianship Act, 1956 (for short "the Act of 1956") read with section 7 and 25 of the Guardians and Wards -7- Act, 1890 (for short "the Act of 1890"). The appellant - father also filed the custody petition and both the petitions were heard and decided by the Family Court vide judgment and order dated 2.2.2007. 4. The Family Court, after adverting to the material on record and asserting the wish of Anisha, after interviewing her, and considering the reports of the Counsellors appointed under the Family Courts Act and the Rules, in concluding paragraphs of the impugned judgment dated 2.2.2007, made the following observations: On the strength of these observations I have to find out with the evidence on record as to which of the parent is having the best support system. I have already conducted that the petitioner is not interested or keen to follow her acting, modeling career and is interested in ccentering her life around her only child. She wanted to be a home-maker and therefore, virtually said good-bye to the glamorous world way back in the year 1995-96, i.e. almost than 12 years and admittedly having sound rapport with the daughter. The grievance of the respondent against her parents have been in the found to be devoted of any mere and therefore discarded at the there should itself. She is an educated lady comes from an affluent family with good sound background and capable of providing healthy sound environment to the child ’Anisha’. -8- On the other hand, the respondent though claimed to be paying attention to the needs of his daughter and though has been in a position to provide best of amenities and comforts to his child and in fact the child has been under his care but the court has to deal with this aspect, keeping in mind the growing age of the child who is a girl, her growing needs, the protection the guidance, advise which she would be in a better position to give than the father. Pertinent to note that there is unimpeachable evidence on record indicating that respondent is a business tycoon, having his business units stretched out in as may as 65 countries in the world and is required to go abroad in connection with his work at least 9/10 times in a year, as reflected from perusal of his passport Exh.131. Besides as per his own admission, he is a social drinker and does take drinks at home at weekends and owns a mini-bar in his flat. He has further admitted that his friends also join him in drinks which includes his friend Mr Kotiyankar and Mr Pradip Patil. The only other female member in his house is his old, aged 65years mother who admittedly is a cardio patient as revealed from medical papers Exh.109 and needs medical supervision constantly as revealed from the evidence of Dr Hebbar vide Exh.143. The Counsellors report clearly indicates that the governess is for day time only and evidence indicates that she attends the respondent’s mother also. Further there is a male attendant Mr Manish against whom lot of reservations has been made by the petitioner which at this stage need not be dealt with as not unnecessary for deciding the issue in question. Further evidence has come on record the respondent’s mother time and again visits her only daughter in States. Comparing these two support system, mutually one find that petitioner has better support system for -9- the child than the respondent." 5. It appears that Anisha was interviewed by the learned Judge of the Family Court on 2-3 occasions. During one of the interviews Anisha told the learned Judge that she goes to her mother’s place on week-ends and she enjoys the access period and always awaits for week-ends. It is pertinent to note that when she was interviewed by the learned Judge she was brought from her father’s custody directly to the court for the purpose of interview and she was called in the court-hall directly so as to avoid meeting the mother to eliminate any possibility of being influenced by her. Anisha was interviewed in the court- hall and also in the chamber where the parents were called and were made aware about the child’s wishes and were advised by the court to find a sensible, logical, rational way of sorting out their differences. Thus, weighing of the pros and cons of the controversy and after weighing and balancing all the mitigating circumstances, the Family Court held that the custody of the child should go to the respondent- mother and considering Anisha’s love and affection for both the parents provided access to the appellant-father. -10- 6. We have heard learned counsel for the parties at great length and with their assistance we have gone through the entire evidence on record. In the course of the arguments, the learned counsel for the parties raised several questions for our considerations. Amongst several other questions, Mr Cama, learned senior counsel for the appellant, also raised the following questions: (i) whether the respondent-wife abandoned the matrimonial home at Chembur and started staying at her parents home at Bandra, leaving the child with the appellant/husband during the period from July, 2004 to November, 2005?; (ii) whether during this entire period the child was happy at home with the father and was doing well at school?; (iii) Whether the respondent-wife participated in "Celebrity Speak" - chat show on the internet and whether in response to the many questions put to her by her fans, she stated that she was working in certain films and she would like to continue working in South Indian and Hindi films? (iv) whether she represented to be single and suppressed the existence of her child and her marriage?; (v) whether, in an interview given by the respondent-wife, as a film actress in the Bombay Times section of Times of India, in response to specific questions as to what brought her back to Mumbai from South, she stated that she came back -11- for her mother and father and she remained silent about the existence of her child?; (vi) whether a complaint in Chembur Police Station seeking their help to release her daughter from the appellant amounts to admission that the child was in exclusive custody of the appellant-husband?; and (vii) whether the police complaint filed by the respondent wife with the Bandra police station amounts to admission that for eight months prior to filing of the complaint the child was residing with the appellant-husband? 7. At the outset, let us make it clear that we will deal with all these questions in the course of this judgment, though most of the questions are not relevant for deciding the main question as to who, between the appellant - husband and the respondent - wife, is entitled to have custody of the child in the facts and circumstances of the case and paramount consideration of the welfare of the daughter. 8. Similar are the questions as to whom the burden of proof and onus in law would lie in such case?; whether it is discharged by the spouse seeking custody?; whether there existed any change in the circumstances warranting change of custody from the appellant-husband -12- to the respondent-wife within 4.1/2 months from the date of the order granting interim custody?; whether there was direction of this Court of psychiatric evaluation of both the parents and a child?; whether the findings recorded by the Family Court while granting interim custody are conclusive in nature and whether the Family Court was right in reversing its finding within 4,1/2 months from the date of granting interim custody? These questions, in our view, need not be gone into and addressed in this judgment. The Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. The litigation where the question of a custody is involved and where the parties are at loggerheads, in our opinion, such litigation cannot be dealt with like any other petition/suit or appeal in civil or commercial litigation. The courts are not expected to examine legality of the impugned order or go into a question as to whether the trial court has committed any error of law. Such litigation needs to be dealt with keeping the welfare and well-being of the child in view. -13- 9. Counsel appearing for the parties placed reliance upon several judgments of the Supreme Court and High Courts in support of their contentions. Before we proceed further and advert to the rival contentions of the parties, it would be advantageous to make reference to the judgments in order to appreciate the submissions of the learned Counsel for the parties. The first judgment that was cited before us was in (Srimati) (Srimati) (Srimati) Kamini Mayi Debi v/s Bhusan Chandra Ghose, AIR 1926 Kamini Mayi Debi v/s Bhusan Chandra Ghose, AIR 1926 Kamini Mayi Debi v/s Bhusan Chandra Ghose, AIR 1926 Calcutta 1193 Calcutta 1193 Calcutta 1193. The provisions of Section 19 of Guardians and Wards Act were under consideration before the Court. It was observed that What is meant by Section 19 is that where the father of the minor is living and is not incompetent to be the guardian of the person of the minor, no other person shall be appointed as guardian of the person of such minor. 10. In Fakhruddin Khan alias Harbans Rai v/s Mt. Fakhruddin Khan alias Harbans Rai v/s Mt. Fakhruddin Khan alias Harbans Rai v/s Mt. Biro, AIR 1926 Lahore 393, Biro, AIR 1926 Lahore 393, Biro, AIR 1926 Lahore 393, the very same provision was under consideration. The court observed that without a finding that the father is unfit, the law (Section 19 of the Guardians and Wards Act) forbids the appointment or declaration of any other person than the father to be guardian. In Kamalamma v/s Laxminarayana Rao, AIR 1971 Kamalamma v/s Laxminarayana Rao, AIR 1971 Kamalamma v/s Laxminarayana Rao, AIR 1971 Mysore 211, Mysore 211, Mysore 211, while dealing with the provisions of Hindu -14- Minority and Guardianship Act and also the Guardian and Wards Act, it was observed that the father in the case of a Hindu minor boy is the natural guardian of the person during his minority and it is permissible for the court to remove him from that position and to appoint either the mother and if the mother is also unfit somebody else as the guardian of the person of the minor boy only if in the opinion of the court the father is unfit to be the guardian of the person of the minor. It is further observed that nodoubt, the only person who can compete with the father as natural guardian on almost equal place is the mother though even she is only second to him. 10.1. In Samuel Stephen Richard v. Stellka Richard, Samuel Stephen Richard v. Stellka Richard, Samuel Stephen Richard v. Stellka Richard, MANU/TN/0183/1955, MANU/TN/0183/1955, MANU/TN/0183/1955, the High Court in deciding the question of custody held that the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ’ipso facto’ entitle him to custody. 10.2. In Rozi Jacob v/s Jacob A. Chakramakkal, AIR Rozi Jacob v/s Jacob A. Chakramakkal, AIR Rozi Jacob v/s Jacob A. Chakramakkal, AIR 1973 SC 2090, 1973 SC 2090, 1973 SC 2090, the Supreme Court, after dealing with the provisions of Section 25 of the Guardians and Wards Act,in paragraph 14, observed thus: -15- "But whether the respondent’s prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which observation we entirely agree : ’the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents.’ It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court’s power under S. 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom - if ever - identical. The contention that if the husband is not unfit to be the guardian of his minor children, then the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under S. 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor’s welfare. There is a presumption that a minor’s parents would do their very best to promote their children’s welfare and, if necessary, would not grudge any sacrifice of their own personal interest -16- and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody to the father cannot promote their welfare equally or better than the custody of the mother, then he cannot claim indefeasible right to their custody under S. 25 merely because thee is no defect in his personal character and he has attachment for his children - which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father’s fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children - being normally the earning member and head of the family - but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts -17- having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable 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 e in a