vss 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 WRIT PETITION NO.6260 OF 2008 WRIT PETITION NO.6260 OF 2008 WRIT PETITION NO.6260 OF 2008 Priti @ Manju Bunty Chugh ... Petitioner V/s. Bunty Shankar Chugh ... Respondent Mr.R.T. Lalwani and Mrs.Sadhana Jayakar Lalwani for Petitioner Mr.Uday Bobde with Vijay Nair, O.A. Siddiqui and R. Rajendra for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: OCTOBER 24, 2008 OCTOBER 24, 2008 OCTOBER 24, 2008 P.C.: P.C.: P.C.: . The challenge in this petition is to the order passed on exhibit 5 filed in Miscellaneous application No.72 of 2007. The interim application filed by the petitioner for custody of her four year old son Sujal has been rejected. 2. The petitioner and the respondent were married on 3.12.2002. It is the case of the petitioner that about 2 or 3 months after the marriage, the respondent and his parents started harassing her by abusing and beating her, although the petitioner’s parents had spent and huge amount for the marriage expenses. On 1.6.2004, the Petitioner gave birth to their son Sujal. The petitioner contends that even after Sujal was born, the : 2 : harassment meted out to her continued and the respondent and his family always raised several demands on her which the petitioner was expected to satisfy through her parents. The petitioner contends that on 18.8.2007, the respondent brutally assaulted her and forced her to leave the matrimonial home with Sujal. The petitioner and Sujal then lived alongwith the petitioner’s parents. On 12.10.2007, according to the petitioner, she was called for a meeting by the respondent and his parents outside a hotel. Sujal was with her and the respondent’s parents forcibly snatched him away from the petitioner. They refused to return Sujal to the petitioner and, therefore, the petitioner filed Miscellaneous Application No.72 of 2007 under the Guardians and Wards Act on 2.11.2007. The petitioner also filed an application for interim custody of Sujal. It appears that the application for interim custody was not heard from November 2007 to May 2008 due to which the petitioner was constrained to approach this Court by filing Writ Petition No.1793 of 2008. By an order passed on 2.5.2008, a learned Single Judge of this Court directed that the interim application be disposed of by the end of June 2008. Accordingly, the application was heard and disposed of on 27.6.2008. The petition has been filed thereafter and the matter has been taken up for disposal finally at the stage of admission with the consent of the parties. : 3 : 3. Several contentions have been raised by the learned advocate for the petitioner. According to him whether Sujal was forcibly taken away from the custody of the petitioner or whether she left the matrimonial home without Sujal, is a disputed question of fact which would have to be proved on evidence being led at the trial. The learned advocate submits that the conduct of the parties would indicate, prima facie, whether the petitioner had in fact left the matrimonial home voluntarily. He submits that both the petitioner and the respondent agree that they parted company on 18.8.2007. A divorce petition was filed by the respondent on 7.9.2007 which according to the learned advocate indicates that the respondent had premeditatedly thrown the petitioner out of the matrimonial home. He submits that thereafter prosecutions have been launched by relatives of the respondent’s mother who claim that they were issued cheques in the name of Priti Textiles signed by the petitioner. According to him, it is inconceivable that a woman who has been thrown out of her matrimonial house would issue cheques to the husband’s relatives, friends and their driver after that date. He submits that these prosecutions are only an example of the harassment meted out to the petitioner even after she was thrown out of the matrimonial home. : 4 : 4. After highlighting the aforesaid conduct of the respondent, the learned advocate for the respondent harped primarily on three submissions. According to the learned advocate, the impugned order is contrary to the provisions of section 6 of the Hindu Minority and Guardianship Act 1956 which provides that ordinarily custody of a minor child who is below the age of five years shall be with the mother. He submits that the impugned order does not discuss whether the petitioner is disqualified for any reason for being given the custody of her minor son who is admittedly below the age of five years. He submits that the impugned order while extolling the virtues of the respondent and his family does not mention the petitioner at all or discuss the kind of life that the petitioner leads. The learned advocate then submits that the respondent has married a second time during the subsistence of his marriage with the petitioner. A marriage certificate dated 19.9.2008 has been produced in this Court indicating that the respondent has got married to one Nisha Sachdev. The learned advocate submits that the minor child should not be brought up in the custody of the respondent who according to him does not lead a responsible life. He submits that any order which permits Sujal to live in an environment where he is required to be in the custody of the respondent’s second wife would not be conducive for : 5 : the child’s well being. He, therefore, submits that in view of the fact that the pleadings on record as also the pleadings in the maintainance application filed by the petitioner indicate that the the petitioner would be in a better position to look after Sujal as she is living with her parents and there is therefore sufficient family support for her in bringing up Sujal. He points out that the respondent in his reply to the application for interim custody has pleaded that the petitioner is not financially sound enough to bring up the child. On the other hand, in the reply to the application for maintainance filed in the divorce petition, the respondent has contended that he does not have sufficient means to pay any maintainance to the petitioner. The learned advocate then submits that the material on record indicates that the while the respondent is at work the child would have to be left with a servant as according to the respondent he has shifted out of Ulhasnagar where his parents were staying and is now living in Thane. He submits that keeping a child with servants throughout the day while the father is at work will not assist the child in progressing emotionally or in his mental development. The learned advocate submits that on the other hand, the petitioner who lives with her parents is at home all the day except when she needs to attend College as she is continuing to prosecute her studies. During this time, the parents of : 6 : the petitioner are available to ensure that the child is looked after well. He, therefore, submits that considering the case from any angle, it is the mother who should be given custody of the four year old child. 5. The learned advocate has relied on several judgments in support of his submissions. I will deal with these judgments at a later stage. 6. In reply to the petition, an affidavit has been filed by the respondent denying all the statements contained in the petition and giving his version of the parting between the petitioner and himself. 7. The learned advocate for the respondent submits that the welfare of a child is of paramount importance and cannot be weighed against the rights of the mother under the Hindu Minority and Guardianship Act. He submits that Sujal is well settled in a conducive environment and it would be incorrect to dislodge him from that environment and plant him into one which is unfamiliar for him. He submits that the impugned order indicates that the learned Judge had watched the reactions of the child in Court and had therefore, not granted custody to the respondent. According to the learned counsel, the story of the petitioner that the respondent and his parents had kidnapped or had snatched : 7 : away Sujal is an afterthought and not borne out from the material on record. He points out that an FIR lodged by her in respect of the proceedings under sections 467, 468, 471 and 420 of the Indian Penal Code indicates that the petitioner had stated in her complaint that she was driven out of the matrimonial home on 18.8.2007 and that Sujal remained with the Respondent. He submits that this reaction of the petitioner is after the so called kidnapping and yet the complaint does not indicate that her child was snatched from her. He relies on a letter from the Petitioner’s father to the Commissioner of Police dated 15.10.2007 which only mentions threats which were directed at him and his family, including the Petitioner. According to the learned Counsel had there been a case of kidnapping/snatching away the child it would certainly have been mentioned by the petitioner’s father in his letter to the Commissioner of Police. The learned Counsel submits, on the basis of the allegations contained in the affidavit filed to the present petition as well as the reply filed before the Family Court, that there is no need to disturb Sujal at this stage when he is progressing well in school and has formed his own circle of friends. He urges that Sujal has now got used to living with his father and grand parents and it would be pointless to throw him into a new environment at this stage as it could cause him to regress. : 8 : 8. Several documents have been filed in this Court which were not part of the record before the Family Court. However, I have perused them in order that justice be done to the parties. 9. I will first deal with the allegations and counter allegations contained in the petition and the affidavit. The petitioner has contended that the respondent and his family lead a life of wastrels and their lives would reflect poorly on Sujal if he continues in their company. A contention is also raised that the Respondent and the members of his family are known to indulge in various notorious acts including drinking liquor in the presence of the child which according to the petitioner is not congenial for child’s upbringing. She has submitted that after imbibing liquor the Respondent and the members of his family become abusive even in the presence of Sujal. An affidavit has been filed in the Family Court by the brother of the respondent’s mother in which he has reiterated the contention of the petitioner that the respondent and his family lead lives which would not give comfort and succour to a child. 10. On the other hand, the respondent in his affidavit has stated that the petitioners did not treat Sujal well while she was living in the matrimonial home. : 9 : He has also stated that the petitioner used to beat Sujal mercilessly which caused severe conflict in his house as he and his parents could not bare the torture that the respondent put Sujal through. He has also contended that on 18.8.2007, the petitioner left Sujal with his parents and without informing anybody started residing with her parents. It was only when the respondent and his father went to the petitioner’s parents house on 20.8.2007 that they realised she did not wish to return with the petitioner. He has also stated that the petitioner demanded that they should reside separately from his parents and that being the bone of contention she refused to return to the matrimonial home. As regards the allegations of the petitioner regarding the respondent’s family indulging in drinking and notorious activities the respondent has denied the same. The respondent has in turn created a picture that his maternal uncle was in the habit of drinking, gambling, blackmailing, extorting and harassing people for money. He has also stated that several litigations are pending between his maternal uncle and his family. The respondent has then denied that he had either forged the signature of the petitioner on any cheques or misused the cheques signed by the petitioner as contended by her. 11. Thus, it is obvious that both the petitioner and : 10 : the respondent have not relented as yet and have made wild and reckless allegations against each other. This attitude of the parties should not affect the child, Sujal. 12. The issue now is whether Sujal should continue in the custody of his father or he should be with his mother as prescribed by law. I made an attempt to speak to Sujal in my Chamber, however, it was very difficult to get across, possibly because of a new environment which is hardly congenial for a four year old. 13. I have perused the pleadings and the impugned order with the assistance of the learned Counsel for the parties. The learned Judge has not given any reason in the impugned order as to why the custody should not be given to the mother. The application for custody has been filed u/s 7 of the Guardian and Wards Act. The parties before me are Hindus and therefore the Hindu Minority and Guardianship Act would apply. U/s 6 of this Act, the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. When the word "ordinarily" is used in the section, it obviously means that unless there are exceptional circumstances for denying the mother the custody, the Court should grant custody in favour of the mother. There is no discussion at all in the impugned judgment : 11 : as to whether there are exceptional circumstances due to which the mother should be denied the custody of her four year old child. All that the Family Court Judge has considered is that the child is an environment which should not be disturbed as he is progressing well in school. However, there is no discussion as to why a conducive environment would not be provided for the child in the mother’s home or the place where she resides alongwith her parents. Admittedly, the petitioner and her family are reasonably well off and, therefore, it would be possible for her to look after the child and cater to his needs. The child of tender years requires both his parents undoubtedly. In today’s times, a father may be equally capable of looking after the child as the mother. However, in the fact situation of the present case, where the father has to leave home for work while the mother is continuously at home, except when she leaves for prosecuting her studies for a couple of hours, it would be more reasonable to ensure that the child is with his mother. The love and care which the mother can give to the child of such tender years no doubt can also be given by the father, but the presence of the mother in the house during the entire day would ensure that the child is not mal adjusted or is not left wanting emotionally. The pleadings indicate that the Respondent is staying in Thane with the child whereas this parents live in Ulhasnagar. However, the : 12 : Respondent has tried to get over this fact by stating that he has returned to his parents house. Yet again he says that the child has been admitted to a school in Thane which is close to his residence. Even assuming the Respondent is staying in Thane with his parents the child is looked after by the grand parents or servants while he is away at work. 14. In the case of Pushpa Singh v/s. Inderjit Singh, 1989 (1) HLR 169 (SC), 1989 (1) HLR 169 (SC), 1989 (1) HLR 169 (SC), the Supreme Court has observed that the High Court was in error in observing that the proviso to section 6(a) of the Hindu Minority and Guardianship Act cannot be attached importance. The Supreme Court has held that the High Court order ignored the mandate of the legislature and in fact ran counter to the mandate. The Supreme Court therefore directed that the paramount interest of the child lay in permitting him to be in his mother’s custody he was less than 5 years old. In the case of Anita Krishnakumar Kachba v/s. Krishnakumar Ramchandra Kachba, 2003(1) 2003(1) 2003(1) Mh.L.J. 828 Mh.L.J. 828 Mh.L.J. 828, the Division Bench of this Court has held as follows: 33. ...The role of mother is of greater importance than that of a father during the earlier years of a child. Therefore, it is for the mother to groom children. For this, mothers should be educated. Mothers can meet, exchange views, analyses problems posed by children and : 13 : help them. The basis education plays an important role in the formative age of the child. One must understand that education is not literacy alone, literacy is only a part of it. Education is much more. It is the physical or biological, psychological or mental and the spiritual or ethical growth of a child. Only when these three function smoothly, one can say there is education. When viewed from this stand point, one can reach to the conclusion that in the formative years first teacher is the mother. Clean habits can easily be taught by the mother, to the extent it becomes a habit for the child. ................ ............... .......... The respondent-father being a businessman is bound to remain busy for the entire day. He cannot afford to look after the children and monitor their studies. One has to leave his house early in the morning so as to reach home before 9 or 10 p.m. The person in business at any rate cannot afford to close his shop before 8.30 p.m. If that be so, such a person can only reach home after 9.30 or 10 p.m. By that time, children go to bed. With such hectic life, how one can expect father to look after his children. He cannot afford to spend any time with his children. As against this, appellant-wife will always be at home and would be in a better position to look after her children. She knows the importance of education. She can mould the habits of her children in a better way. Her parents are ready to support her. Thus, considering the welfare of the children in the peculiar facts of the present case, we think that their custody should be with the mother, to which she would be entitled with the end of the academic year i.e. in the end of April 2003. (emphasis supplied) 15. In the case of Smt.Kiran Ajit Lakhani v/s. Ajit Hariram Lakhani, 2006(1) ALL MR 90, 2006(1) ALL MR 90, 2006(1) ALL MR 90, a learned Single Judge of this Court has held that the company of the mother is most vital and important for the overall development of a child. It has further been held that even if the child was hostile against the mother at the : 14 : present point of time, the company and love of the mother would change the attitude of a child towards the mother. 16. On the other hand, Mr.Bobde has relied on the judgment of the Supreme Court in the case of Mausami Moitra Ganguli v. Jayanti Ganguli, 2008 AIR SCW 4043 2008 AIR SCW 4043 2008 AIR SCW 4043. The Supreme Court was considering whether the mother should have the custody of approximately a 10 year old boy. The facts involved in that case were similar to the facts in the present case. The principles relating to custody of a minor child were reiterated in the following manner: 14. The principles of law in relation to the custody of a minor child ar well settled. it is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obligerate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the cases are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to : 15 : look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sold determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration." 17. The Supreme Court observed that the dislocation of a child of 10 years when he has grown up in sufficiently good surroundings, would not only impede his schooling, it could also cause him emotional strain and depression. The Court has observed that when it was suggested that the child should stay with the mother he started crying and showed reluctance to go with the mother. On watching his reaction, the learned Judges, bearing the welfare of the child in mind, were convinced that the child’s interest and welfare would be best served if he continued to be with the father. 18. The reports of the K.G. school ‘Daffodils’ where Sujal studies have been submitted. It appears from the receipts produced that Sujal was admitted to the school some time in November 2007 in the nursery class. Thereafter he was continued in the same school in the Junior K.G. and is currently studying in that : 16 : school. The reports indicate that he is a friendly child, interested in all class activities. The remarks also indicate that Sujal had joined the school late but had adjusted well. As time went by, his progress continued as seen from the reports annexed to the affidavit. The progress reports show that he was well adjusted to the environment in the school. However, that by itself would not in my opinion, indicate that he should not be in his mother’s custody. There is an every reason to believe that Sujal will be equally comfortable and well adjusted with his mother who in any event under the Hindu Minority and Guardianship Act is entitled to be his guardian as he is less than 5 years. 19. In these circumstances, in my view, the petition must be allowed. I am aware that I am dealing with an order passed on the interim application. However, in my opinion, it would be necessary to pass this an order to ensure that the child does not lose out on his mother’s love and affection. There are no compelling circumstances to deny the petitioner her child’s custody. It is true that