Case: Gaurav Nagpal Vs. Sumedha Nagpal

2. Matrimonial discords are on the rise at an alarming rate. The sanctity of marriages is under cloud, which in a great way affects the society at large. Individuals can in no way be segregated from the society to which they belong. The cultural heritage of a country is greatly influenced by a pattern of behaviour of individuals and more so in matters of matrimony. Home can be a wonderful place to live. But continuous fights between the partners of a marriage disturb the atmosphere at home and create havoc on the members of a family. One does not need a mansion to lead a happy marital home. The foundation of a happy home is love, sharing of joys and sorrows, and not in that sense bricks and concrete. There should be cementing of hearts and not cementing of floors and walls. Life is a series of awakening. The happiness which brings enduring worth to life is not the superficial happiness that is dependent on circumstances. Ultimately, in the fight between the partners, the victims more often than not are the children. It is unfortunate that in their fight more often on account of egoism the children suffer, more particularly when the child is a girl. It is not uncommon to see that at the time of negotiation of marriage, the boys parents shy away because the girl is from a broken family and/or the parents are divorced. The child has practically no role in breaking of the marriage, but he or she suffers. The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. It is worse when there is a single child, be it a boy or a girl. The case at hand is a classic example where the child has become the focus of controversy. Bitter legal fights have been fought and the corridors of several courts including the Supreme Court have been travelled by the parties. Efforts have been made unsuccessfully to bring about conciliation between the parties. The best way to make children good said a learned author is to make them happy.3. A brief reference to the factual aspects leaving out the maize of unnecessary facts wouldparties got married on 14.10.1996 and the child from their wedlock was born on 15.11.1997. According to the appellant, respondent abandoned the child on 8.8.1999 but she filed a Habeas Corpus Petition before the Delhi High Court on 25.8.1999. The High Court dismissed the petition on the ground of territorial jurisdiction. Respondent filed a Special Leave Petition against the High Courts order dated 14.1.2000 and also filed a Writ Petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution). This Court permitted interim custody of the 20 months old child with the appellant. The respondent filed a maintenance petition before the Delhi High Court and also a petition for guardianship before a learned Additional District Judge, Jhajjar. The same was later withdrawn and the petition was filed in the District Court, Gurgaon. Appellant filed his reply opposing the application on the ground that the respondent had deserted the child. By order dated 2.5.2002, learned Civil Judge dismissed the application for interim custody holding that any disturbance by changing the custody of the child would traumatize him and shall not be conducive to the welfare of the child and it would affect the mental balance of the child who had developed love and affection for his father and his family members. A Revision Petition was filed by the respondent before the High Court. The High Court granted the visitation rights to the respondent by order 30.9.2002 but continued the interim custody with the appellant. The visitation rights fixed by the Court were in the following terms:(a) 9 a.m. to 5 p.m. on every last Saturday of the month.(b) For a week in the aforesaid manner in summer vacations.(c) One day in Dussehra holidays (9 a.m. to 5 p.m.(d) One day in Diwali Holidays (9 a.m. to 5 p.m.).A contempt petition was filed for violation of the terms by the appellant. The learned District Judge, Gurgaon allowed the petition of the respondent and granted custody of the child to the respondent. Appellant preferred an appeal before the High Court against the order dated 6.1.2007. The High Court passed an interim order staying the order of custody to the respondent but continued the order with respect to visitation rights. By order dated 13.7.2007 the appeal filed by the appellant was dismissed. Though the initial order of the High Court was stayed, subsequently by order dated 29.10.2007 the visitation rights were continued.4. According to the appellant, the order of the High Court is clearly wrong on several counts. The order passed by the High Court dated 9.3.2005 convicting the appellant for contempt of court has also been assailed in Criminal Appeal No.491 of 2006. The Trial Court came to hold that since the child had remained with the appellant for a period of 7 years, he appears to have made every possible effort to obtain the custody of a minor. The learned District Judge took note of the fact that taking of the child from his fathers custody may adversely affect the sentiments and upbringing of the child, but at the same time the child should not be deprived the mothers home.5. Stand of the appellant before the High Court was that the court below had not held that he suffers from any disability in his role as a father and, therefore, there was no comprehensive reason for the Court to direct custody of the child to be entrusted to the respondent. The fact that the respondent was the mother cannot be the sole basis for allowing the petition. While considering the prayer for the custody of the child, several factors including the relationship between the parties and the minor are secondary. It was submitted that the minor was abandoned when he was about one year and nine months old. Thereafter, in the garb of seeking custody several rounds of litigation were unleashed.6. With reference to Section 6 of the Act it was submitted that the father was the legal guardian and the welfare of the minor child lies with the appellant. He has a large income and resides in a joint family where the minor is taken care of by the appellant, his mother, brother and brothers wife and his three nephews. The warmth of the joint family has led to an all round development of the child and by taking him away from those surroundings can deprive him of love and affection. The appellant lives in a posh locality and the house is built on nearly 3000 sq. yards whereas the respondent resides with her parents in a two-bed room flat. Apart from that the appellant has a good educational background and since the child has been residing for the last more than seven years with him, the courts should not have directed handing over custody to the respondent.7. It was further pointed out that the primary focus being the welfare of the child, the respondent should have brought on record as to how with her meagre income she would be able to provide good education to the child. It was pointed out that the child is afraid of his mother and wrenching him from the custody of the father would lead to irreparable mental trauma.8. So far as the contempt proceedings were concerned it was submitted that the appellant is not a criminal and though certain cases have been lodged against him they are related to some technical violations.9. The respondents stand on the other hand was that the appellant had shifted his residence to Bahadurgarh by deception and fraud. From there the child was snatched from her custody on 1.8.1999. Since that date she has approached various courts to seek custody of the child and for redressal of her grievances. The respondent got order relating to interim custody. For failure to comply with the orders of interim custody, the appellant was convicted by the High Court and sentenced to one months imprisonment and though the order of sentence has been stayed, the order of conviction still continues to be in force. The appellants conduct in disobeying the orders passed by the courts discloses that he has no respect or any regard for the rule of law. It was further submitted that the childs welfare cannot be weighed in terms of money, facilities, area of a house or the financial might of either the father or the mother. It was pointed out that respondent had no option but to reside with her parents and is a teacher in Salwan Public School. Merely because she was residing with the parents cannot disqualify her from looking after her child. She may not be as financially sound as the appellant, but that alone cannot disentitle her from the custody of the child. She has stated that she was drawing a salary of Rs.13,000/-p.m. (which is likely to be substantially increased) and was receiving Rs.25,000/- as maintenance pursuant to the order passed by the Delhi High Court and she can look after the financial needs for educating the child. She resides in Gulabi Bagh which is well located and surrounded and there is a park nearby. The colony has 8-10 parks and it is a better location where the child can be well developed. Therefore, it cannot be said that the respondent resides in an area which is unsuitable to the minor child.10. It is also pointed out that the appellant has no fixed residence. He shifted from Delhi to Bahadurgarh and then Gurgaon and back to Delhi in a house in Sainik farm where the appellant claims to reside. Same is owned by his brother. It has been a deliberate attempt to poison the mind of the child. Negative facts have been fed into the childs mind against the respondent. It was further submitted that if sufficient time is given the child would overcome any tutored prejudice. Though, there was a claim that the relatives would provide healthy environment to the child, none of them stepped into the witness box and affidavits filed much later cannot be a substitute for the evidence in Court. The High Court took note of Section 13 of the Act which is the foundation for the custody of the child. The welfare of the minor is of paramount consideration. The High Court looking into the materials placed observed asview of the facts, noticed herein before, the question that exercises this Courts mind is should the child be permitted to stay with a father, who inculcates fear and apprehension in the mind of minor, against his mother and thwarts court orders with impunity. The answer to the above questions, in my opinion, must be in the negative. The appellant, cannot wish away his role, in the minor harboring such an irrational fear towards the mother. I am conscious of the fact that directing the custody of the child to the respondent, may result in a degree of trauma. However, the daily trauma the child appears to undergo while being tutored against his mother would be far in excess of the trauma likely to be faced while entrusting to the respondent. The minor child must be allowed to grow up with a healthy regard for both parents. A parent in this case, the appellant, who poisons the minors mind against the other parent cannot possibly be stated to act for the welfare of the minor.It is submitted that the High Court was not oblivious of the financial status of the respondent. The High Court also found that large area of accommodation and financial affluence cannot be a determinative factor. Therefore, the High Court did not find any scope for interference with the order of the court below.

Reasoning:
35. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child and not rights of the parents under a statute for the time being in force.36. The aforesaid statutory provisions came up for consideration before Courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.37. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103 ; the High Court of Bombayis not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration." (emphasisIn Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 , this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of wards health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.39. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 , this Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.40. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.41. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698 , this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42 ; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6 ].42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Gangulis case (supra), the Court has to due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical others.43. The word ‘welfare used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.44. The trump card in appellants argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.45. The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother does not in our view suffer from any infirmity. It is true that taking the child out of the fathers custody may cause some problems, but that is bound to be neutralized.46. Learnedcounsel for the appellant submitted that the childs education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.(2) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.(3) For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mothers place on such days.48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-.CRIMINAL APPEAL NO.491 OF 200649. Though we find that the order of the High Court does not suffer from any infirmity but taking into account the fact that we have dismissed the connected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Courts order and committing contempt of Court, we restrict the sentence to the period already undergone.50. Before saying omega, we propose to make some general observations. It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in short the ‘Marriage Act) has led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid. Actions may be bad, but not the Section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. As noted above, this is more important in cases where the children bear the brunt of dissolution of marriage.50. One must not lose faith in humanity. It is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty. If nothing ever went wrong in ones life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be physical and mental union. Marriage is something, Ibsen said in "The League of Youth" you have to give your whole mind to. If marriages are made in Heaven as Tennyson said in Ayloners Field, why make matrimonial home hell is a big question.