Case: Roxann Sharma Vs. Arun Sharma

2. Civil Appeal of 1966 2015 arising out of SLP(C) No.31615 of 2014 assails the Judgment dated 2nd August, 2014 passed by the High Court of Bombay at Goa in Writ Petition No.79 of 2014, which in turn questioned the Order dated 31.1.2014 passed by the IInd Additional Civil Judge, Senior Division at Margao, Goa (hereafter also referred to as the Civil Judge) in Matrimonial Petition No. 15/2013/II filed on 18.5.2013 before us, by the Respondent, Shri Arun Sharma (hereafter referred to as Father) under Section 6 of the Hindu Minority and Guardianship Act, 1956. In this petition the Father has prayed inter alia that (a) the custody of the minor child, Thalbir Sharma be retained by him and that (b) by way of temporary injunction, the Appellant before us (hereinafter referred to as the Mother) be restrained from taking forcible possession of the minor child Thalbir from the custody of the Applicant. These proceedings were initiated and are pending in Goa at the instance of the father; at that time when all three persons were residents of Goa. After a detailed discussion of facts, as well as of law, the IInd Additional Civil Judge, Senior Division Margao, Goa ordered that "pending final disposal of the petition on merits, the respondent, Roxann Sharma is granted interim custody of minor child Thalbir Sharma. The applicant shall have visitation rights to the child. He shall inform about his visit to the child in advance to the respondent upon which she shall allow applicant to visit the child". A reading of this order discloses that the learned Civil Judge favoured the opinion that the custody of Thalbir, a child of tender years should remain with the Mother and thereby the childs paramount interests would be subserved and safeguarded; that the Mother holds a Master of Arts degree from Howard University, Washington D.C. and is a Tenured College Professor in Los Angeles Mission College, California; that the allegation of her suffering from Bi-polar disorder had not been persuasively proved and in any event, did not disqualify her to the custody of her son; that the Father is allegedly an alcoholic and a drug-addict who had joined a drug rehabilitation clinic, and was also a member of Narcotics Anonymous (N.A); that Father had been previously married; and that he was not gainfully employed. The Impugned Order is also a detailed one in which the facts have been noted and the statutory laws as well as precedents, have been discussed.3. However, in sharp divergence to the conclusion arrived at by the learned Civil Judge, the learned Single Judge of the High Court of Bombay at Goa has opined that "it cannot be disputed that for upbringing the child, love of the petitioner as well as the respondent who is the mother is very much essential for the healthy growth of such child. In such circumstances, though the custody would continue with the petitioner nevertheless, the respondent being the mother would definitely have frequent visitation rights of the minor child. Such visitation rights shall tentatively be for at least 3 days in a week. The parties are at liberty to fix such days before the learned Judge at a mutual agreeable place preferably within the jurisdiction of the Court". The Court, we must immediately underscore is located in Goa and not in Mumbai. These directions have attained finality against the Father; the Mother would have been entitled to visitation rights for at least three days and equally importantly in Goa.4. Before us, it has been narrated by the Mother that consequent upon her frantic searches for her son, Thalbir, she had came to learn in August, 2013, that the Father along with Thalbir was in Mumbai. She filed Criminal Writ Petition No.87 of 2013 which had been disposed of by Orders dated 26.8.2013 noticing that proceedings under the Hindu Minority and Guardianship Act, 1956 (HMG Act) were pending in Goa and directing that the Mother should have access to Thalbir in Mumbai at a place near the residence of the Father. Thereafter, as already mentioned above on 31.1.2014, the Order by which the arrangement was reversed in the Impugned Order, came to be passed by the learned Civil Judge, Senior Division, Margao granting custody to the Mother and visitation to the Father inAPPEAL No. 1967 OF 2015 (Arising out of SLP No. 32581 of 2014)15. After the passing the Impugned Order in WP 79 of 2014, the Mother filed an application dated 20.08.2014, for grant of visitation rights. Her suggestion was that she should have custody of Thalbir from Monday to Friday at Dona Paula, Goa, to be returned to the Father on Fridays at 5.00 pm; thereafter, custody of Thalbir be restored to the Mother at 10.00 A.M. on Monday morning in the Trial Court. The Father resisted the application by stating that he had no objection to the Mother visiting the child on three continuous days in each week between 4.00 p.m. and 5.00 p.m. However, he pleaded that since June, 2013, he along with Thalbir were residing in Flat No.2, Aashirvad Building, Sidhi Sadan Colony, Borivali West, Mumbai. By Orders dated 6.9.2014, the Trial Court ordered that Thalbir should be brought to the Court every Saturday at 9.30 A.M. to be handed over to the Mother who would in turn produce the child in the Court at 5.00 p.m. on the following Monday. It is this Order which was challenged in W.P.No. 576 of 2014. The second learned Single Judge has undertaken a discussion on meaning of frequent, concluding that it cannot be continuous; that the previous Order could not have meant that Thalbir would remain exclusively with his Mother for three days. On this dialectic the second learned Single Judge found error in the Trial Courts Orders dated 6.9.2014. The Impugned Order goes on to note that the Mother has no permanent residence in India and that she had not disclosed any fixed address in Goa and the Mother was suffering from Bi-polar disorder. Inexplicably, the second learned Single Judge found fault with the Order granting weekend visitation to the Mother, ignoring the reality that Trial Court was only implementing the directions given by the previous learned Single Judge. It seems plain to us that it was not open to the Trial Court to venture afresh on the question of the welfare of Thalbir when the matter stood concluded against the Father who had not filed any Appeal against the Order of the previous learned Single Judge. All that the Trial Court was expected to do was to allocate three days custody for the Mother. In effect the second learned Single Judge has given his own understanding and meaning to the previous Order of a coordinate Bench of the High Court, which we find to be diametrically opposite to what stood articulated by the High Court in the previous writ proceedings. In paraphrasing the Order, the learned Single Judge in the Impugned Order has added the word "preferably" within the jurisdiction of the Court, but the word "preferably" has not been used in the previous Order. The Impugned Order also appears to lose sight of the fact that all three persons were residing in the United States and have only recently shifted to Goa which was, therefore, at that time, the only abode of the parties. It has also not given due weightage to the asseverations of the Mother that she had invested her savings in purchasing property in Goa, as well as in Mumbai in the joint names. Keeping in view the fact that Father has not been able to satisfactorily show that he had any income, prima facie, the Mothers statement has credibility. Most importantly, it was the Father who initiated proceedings in Goa, which jurisdiction has not been opposed by the Mother and, therefore, to hold against the Mother at the initial stages is neither just nor proper. Given the protracted litigation which has already transpired between the parties it seems to us that the second learned Single Judge was derelict in not deciding the issues and instead merely setting aside the Order dated 6.9.2014 assailed before him for an adjudication de novo. The directions previously passed by a coordinate Bench have been nullified and miscarriage of justice has resulted.16. The learned Single Judge in Writ Petition 79 of 2014 has categorically ordered that whilst the custody of Thalbir shall continue with the Father, the Mother shall get "visitation rights" which he temporarily fixed at least three days in a week "at a mutual agreeable place preferably within the jurisdiction of the Court," situate in Goa; the Trial is continuing in Goa. We fail to locate or appreciate any reason or justification for the intervention of the High Court in Writ Petition 576 of 2014 which is the subject matter of Civil Appeal of 2015 arising out of SLP (C) 32581 of 2014 by a different learned Single Judge. We have already noticed the intendment of Section 14 of the G&W Act which acknowledges the salutary necessity of only one court in dealing with the guardianship or custody disputes pertaining to the minor. This petition challenged the proprietary of the Order dated 6.9.2014 passed by the learned Civil Judge which in turn was in compliance with the Order dated 2.8.2014, which it may be recalled granted visitation rights to the Mother for at least three days in a week within the jurisdiction of the Court. The annals of the turbulent marriage of the parties, the IVF conception of Thalbir etc., have been duly noted by the first learned Single Judge and the learned Civil Judge. The learned Single Judge has then questioned the very applicability of HGM Act as well as G&W Act in the State of Goa, an aspect which had not been agitated by either the Mother or the Father in any of the earlier proceedings. There can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the childs welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons. The need to have a continuity in adjudication ought to have persuaded the second learned Single Judge to have recused himself in preference to his learned Brother who decided the previous Writ Petition.

Reasoning:
7. The Guardianship postulates control over both the person as well as the assets of a minor or of one and not the other. This is obvious from a reading of the definitions contained in Section 4 (2) of the Guardians & Wards Act, 1890 (G&W Act) and Section 4(b) of the HMG Act which clarifies that "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property. Section 9 contemplates the filing of an application in respect of the guardianship of the person of the minor and Section 10 specifies the form of that application. Section 12 deals with the power to make interlocutory order for protection of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on the lines of Section 10 of the CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub section 2 thereof enjoins the court to give due consideration 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. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian shall make an order of hislearned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latters crossing the age of five years.13. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the fathers suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mothers unsuitability since Thalbir is below five years of age. In these considerations the fathers character and background will also become relevant but only once the Court strongly and firmly doubts the mothers suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove.21. After carefully reading the Reports of the Social Worker, Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr. Arun Sharma, Father to neither directly nor indirectly through any member of his family or his friends, to communicate in any manner or to meet the Social Worker, Mrs. Deepali Ajay Satpute. This is in deference to the apprehensions that she has felt and expressed to the Court as a consequence of conversations of the Respondent and his Mother with her pertaining to her as well as the safety of her own son. In the event of the Social Worker seeking Police Protection to her and family, the Station House Officer of the concerned Police Station shall immediately provide the same and we direct so.