Case: Anjali Kapoor Vs. Rajiv Baijal

stage, it may be useful to refer to the decision of Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has observed, that, if a minor has for many years from a tender age lived with grand parents or near relatives and has been well cared for and during that time the minors father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the banafide of the petition by the father for their custody. 14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision. 15) In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that, ... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. 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 ties of affection be disregarded. 16) In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that: 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 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. 17) In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that: 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 childs own character, personality and talents. 18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child. 19) Anagh is staying with the appellants family and is also studying in one of the reputed school in Indore. It must be stated that the appellant has taken proper care and attention in upbringing of the child, which is one of the important factor to be considered for the welfare of the child. Anagh is with the appellant right from her childhood which has resulted into a strong emotional bonding between the two and the appellant being a woman herself can very well understand the needs of the child. It also appears that appellant, even after her husbands demise, is financially sound as she runs her own independent business. 20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business. 21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14) In our view, the observations made by the Madras High Court cannot be taken exception by us. In fact those observations are tailored made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision18) Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Anagh in the facts and circumstances of this case. In the present case, the appellant is taking care of Anagh, since her birth when she had to go through intensive care in the hospital till today. The photographs produced by her along with the petition, which is not disputed by the other side would clearly demonstrate, the amount of care, affection and the love that the grandmother has for the child having lost only daughter in a tragic circumstances. She wants to see her daughters image in her grand child. She has bestowed her attention throughout for the welfare of reminiscent of her only daughter, that is the minor child which is being dragged from one end to another on the so called perception of judicial precedents and the language employed by the legislatures on the right of natural guardian for the custody of minor child20) On the other hand, considering the evidence of the respondent, it seems to us that since he has borrowed money from several persons and since he has a meager income he may not be in a position to give comfortable living for the child . In spite of notices issued to him, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business21) Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child