IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(G&WA) No.523 of 2009 Judgment Reserved on: 28.02.2012. Date of decision: 06.03.2012 Shri Shamsher Singh son of Shri Bhagwan Singh, resident of Village and Post Office Bhatoli, Tehsil and District Una, H.P. … …Appellant Versus Smt.Jasbir Kaur wife of Shri Balbir Singh, resident of Village and Post Office Santokhgarh, Tehsil and District Una, H.P. … …Respondent Appeal under Section 47 of the Guardian and Wards Act, 1890. Coram The Hon’ble Mr.Justice Dev Darshan Sud,Judge. Whether approved for reporting ?1 Yes. For the Appellant: Mr.N.K. Thakur, Senior Advocate with Mr.Ramesh Sharma, Advocate. For the Respondent: Mr.Ajay Sharma, Advocate. Dev Darshan Sud,J. This appeal has been preferred by Shri Shamsher Singh, great grandfather of the minor Satinder Pal Singh whose custody has been claimed by respondent Smt.Jasbir Kaur being her mother and natural guardian and granted as such by the learned Court below. 2. The brief facts of the case are that a petition under Section 6 of the Hindu Minority and Guardianship Act, 1956 read with Sections 7, 8 and 10 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 of the Guardian and Wards Act, 1890 was instituted by the respondent claiming custody of the minor. She pleaded that the minor Satinder Pal Singh was born on 16.2.2000 out of her wedlock with Jasdev Singh who died on 6.1.2000. She became a widow at a very young age and with the consent of the parents of her late husband Jastev Singh she remarried and out of that wedlock she has two children. The case pleaded is that in order to facilitate this marriage, the custody of the minor was handed over to the grandfather Kishan Singh for a short period for which purpose agreement Ex.RW-1/A was executed between the parties. It is undisputed before me that Shri Kishan Singh has since died and now the custody of the child is with the appellant who is his great grandfather who is more than eighty years of age. The mother claimed custody of the child inter alia on the ground that she is the natural mother; is in a better position to look after the interest of the child, to provide him good education and medical treatment required by the minor. It is also undisputed before me that surgical intervention was required for treating the minor which procedure had carried out at the Indira Gandhi Medical College and Hospital, Shimla on the directions of this Court. 3. The petition was resisted on a number of grounds by the respondent inter alia that Kishan Singh was in a better position to look after and protect the interest and welfare of the minor; the appellant had 3 made no effort or attempt either to visit him or provide monetary or other assistance or look after his welfare. The learned trial Court on the evidence and on the interpretation of Ex./RW-1/A held that the mother had not abandoned the custody of the child and that she was the best person to look after his custody. The agreement Ex.RW-1/A was only transient to enable the appellant to resettle in life. 4. A number of submissions have been made by learned counsel for the parties in support of their respective contentions. Shri N.K. Thakur, learned Senior counsel appearing for the appellant, urges that the order of the learned District Judge on 7.10.2009 records that the child had not inclined to go with the respondent/mother. To similar effect orders passed by this Court on 25.2.2010, 29.9.2010, 18.10.2010, 27.6.2011 and 23.8.2011 also note that the minor has more attachment with his grand parents and is unwilling to go with his mother. In these circumstances, he urges that the principle of law is that it is the wish of the minor which is to be given due weight and the custody should and ought to remain with the appellant. Learned Senior counsel places reliance on the judgment of the Supreme Court in Sheila B.Das vs. P.R. Sugasree, (2006)3 SCC 62, on the facts in that case, the Court held:- “29. Having regard to the complexities of the situation in which we have been 4 called upon to balance the emotional confrontation of the parents of the minor child and the welfare of the minor, we have given anxious thought to what would be in the best interest of the minor. We have ourselves spoken to the minor girl, without either of the parents being present, in order to ascertain her preference in the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently done extremely well in her studies in school, and we were convinced that despite the tussle between her parents, she would be in a position to make an intelligent choice with regard to her custody. From our discussion with the minor, we have been able to gather that though she has no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed us that she had established a very good relationship with her paternal aunt who was now staying in her father's house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence.” (p.72) 5. While arriving at its decision the Supreme Court had considered the previous precedents on the point dealing with the welfare of the child. 5 6. Learned Senior counsel also places reliance on the judgment of the Supreme Court in Lekha vs. P.Anil Kumar, (2006)13 SCC 555, to urge that the Court holds:- “11. On 16-11-2006, we interviewed the boy in our chambers. The boy who is now 12 years old appears to be a bright boy. He understands the questions put to him and gave apt replies. At the time of interview, it was ascertained that he had no ill will or hatred towards his father but at the same time, he is not interested in living with the father permanently as he had expressed his willingness to stay with his mother. The minor further stated that if he is allowed to stay with his mother, that is better for his education and she will teach him properly. He also said that the appellant (mother) treats him and the newborn baby with same love and affection and there is no discriminatory treatment. He also further said that his stepfather also likes him very much and that he, therefore, would prefer to live with his mother which will benefit his education. The boy also said about the remarriage of the mother and the birth of the child of his mother. At the time of interview, the boy unequivocally deposed that he would continue to live with his mother since the mother is looking after him with all her love and affection. 12. We have carefully perused the orders passed by both the lower courts and of the High Court. The High Court, before 6 setting aside the concurrent finding passed by the courts below, ought to have interviewed the child before coming to a conclusion that for the welfare of the child the custody should be given to the father. Mr Rajan submitted that since the mother has remarried, she would not devote her time for the welfare of the boy and that in the interest of the child, the child should be given in custody only to the father who is not only healthy but also have other facilities to look after the child, his education and welfare. 13. We are of the opinion that the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. As already noticed, at the interview, the boy has expressed his willingness and desire to live only with his mother and was admitted by him that the mother will provide him good education. The mother is also drawing pension of Rs6000 p.m. and also having land and properties in her name. When the boy says he prefers to live with his mother, we are of the view that it will be beneficial for the boy and his education for a better future. The High Court, in our opinion, erred in allowing the appeal on the ground of remarriage of the appellant without considering the other aspects of the matter. It is a matter of custody of the child and the paramount consideration should be the welfare of 7 the child. It is not in dispute that the boy is living with his mother for the last several years and the separation at this stage will affect the mental condition and the education of the child and considering that the child himself attaches importance to his education if the custody is to be given to the father will now affect his academic brilliance and future. 23. The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the child's upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly, we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant mother shall hand over the child to the respondent father during every mid-summer vacation for about a month without adversely affecting the child's education. The appellant should not also prevent the respondent father 8 from coming to see the child during weekends and the appellant should make necessary arrangements for "the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent father to the child.” (pp-559-560 & 562-563) 7. Learned counsel also submits that in case the custody of the child is not granted to the mother, he would suffer a psychological trauma which cannot be permitted in law. In Mamta alias Anju vs. Ashok Jagannath Bharuka, (2005)12 SCC 452, the Court holds:- “4. … … … … … …We are of the view that before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent.” (pp.452-453) 8. To similar effect is the decision of the Supreme Court in Nil Ratan Kundu and Another vs. Abhijit Kundu, (2008)9 SCC 413. The principles 9 governing the grant of custody of the child have been considered in extenso by the Supreme Court holding:- “23. Before we address ourselves to the issue regarding custody of Antariksh, let us consider the legal position. English Law 24. In Halsbury's Laws of England, Fourth Edition, Vol.24, para 511 at p.217 it has been stated; "511. … … …Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custody or upbringing is superior to that of the mother, or the mother's claim is superior to that of the father." (emphasis supplied) It has also been stated that if the minor is of any age to exercise a choice, the court will take his wishes into consideration. (para 534; p.229). 25. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is ”welfare of the child”. 26. In Habeas Corpus, Vol.I, p.581, Bailey states; "The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and 10 its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate." It is further observed that an incidental aspect, which has a bearing on the question, may also be adverted to. In determining whether it will be for the best interest of a child to grant its custody to the 1 father or mother, the Court may properly consult the child, if it has sufficient judgment. 27. In McGrath (infants), Re, (1893) 1 Ch 143, Lindley, L.J. observed (Ch p.148) “ … … … … The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.” (emphasis supplied) American Law 28. The law in the United States is also not different. In American Jurisprudence, 2nd Edn., Vol.39, Para 31, p.34, it is stated; "As a rule, in the selection of a guardian of a minor, the best interest of the child is the paramount consideration, to which even the 11 rights of parents must sometimes yield". (emphasis supplied) In Para 148, pp.280-81, it is stated: "Generally, where the writ of habeas corpus is prosecuted for the purpose of determining the right to custody of a child, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until it attains its majority. The Court, in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of an adult, but on the Court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence, a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the 1 child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration. An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent 12 interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment". (emphasis supplied) 29. In Howarth v. Northcott, 152 Conn 460, it was stated: "In habeas corpus proceedings to determine child custody, the jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its infant ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of 2 the jurisdiction of a court of equity". It was further observed: "The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate". (emphasis supplied) It was also indicated that ordinarily, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case of such a writ sued out for the detention of a child, the law is concerned not so much with the illegality of the detention as with the welfare of the child. 13 Indian Law 30. The legal position in India follows the above doctrine. There are various statutes which give legislative recognition to these well-established principles. It would be appropriate if we examine some of the statutes dealing with the situation. Guardians and Wards Act, 1890 consolidates and amends the law relating to guardians and wards. Section 4 of the Act defines "minor" as a person who has not attained the age of majority. "Guardian" means a person having the care of the person of a minor or of his property, or of both his person and property. "Ward" is defined as a minor for whose person or property or both, there is a guardian. 31. Chapter II (Sections 5 to 19) relates to appointment and declaration of guardians. Section 7 deals with “power of the Court to make order as to guardianship” and reads as under: “7. Power of the Court to make order as to guardianship.-(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3)Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the 14 guardian appointed or declared as aforesaid have ceased under the provisions of this Act.” 32. Section 8 of the Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material provision and may be reproduced: “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. * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will.” (emphasis supplied) 33. Section 19 prohibits the Court from appointing guardians in certain cases. 15 34. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians. 35. Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as " the 1956 Act") is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as a person who has not completed the age of eighteen years. "Guardian" means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act. 36. Section 6 enacts as to who can be said to be a natural guardian. It reads thus: “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. (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 16 "mother" do not include a stepfather and a stepmother.” 37. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may be quoted in extenso: “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