Case: Lekha Vs. P.Anil Kumar

The marriage between the appellant and the respondent was solemnized on 31.01.1994 as per Hindu religious rites and customs. Out of the said wedlock, a son, namely, Rohit Vishnu was born and he is 12 years old now. At the time of marriage, the respondent was employed abroad. After marriage the appellant and the respondent lived together for 2= months and thereafter they lived separately because of the misunderstanding between them. Since the harassment and cruelty of the respondent crossed the extreme extent, the appellant was compelled to file a petition for divorce on the ground of cruelty. The respondent filed a petition for restitution of conjugal rights against the appellant. Thereafter, the respondent filed an original petition under the Guardians and Wards Act for the custody of the 11 years old minor child. The main allegation of the respondent was that the appellant was having illegal intimacy with another person. The second contention was that if the child is in the company of the appellant, it would affect the education of the child. The respondent also contended that he is financially better than the appellant and hence the custody of the child be given to him. The appellant defended the matter and filed a written statement denying all the allegations.3. In the meantime, the Subordinate Judge passed an ex- parte decree for divorce in favour of the appellant and the petition for restitution of conjugal rights filed by the respondent was dismissed for default.4. After considering the oral evidence adduced by the parties and examining the documentary evidence and also interviewing the child, the trial Court came to the conclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the father filed under the Guardians and Wards Act.5. Against the order of the trial Court, the respondent filed an appeal before the High Court of Kerala. The contention of the respondent was that contrary to the deposition made by the appellant before the trial Court that she would not re-marry, immediately after the judgment of the petition filed under the Guardians and Wards Act, she remarried. It is, therefore, contended that the continued custody of the child with the appellant would be detrimental to the interest, progress and welfare of the child.6. The High Court, without giving an opportunity to express the willingness of the child, allowed the appeal only on the ground of remarriage of the appellant/mother of the child. The High Court also held that the respondent-father is a businessman in Saudi Arabia and the father is more apt and suitable to protect the interest of the minor child and also in imparting education to the required standard of the child. Aggrieved against the order passed by the High Court, the appellant has preferred the above civil appeal. On 21.09.2005, the status quo was ordered by this Court.

Reasoning:
13. According to the Hindu Law, the natural guardian of a minor child is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians.14. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the Court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in Sura Reddy vs. Chenna Reddy, AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and that fact a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.15. A man in his social capacity may be reckless or eccentric in certain respects and other may even develop a considerable distaste for his company with some justification but all that is a farcry from unfitness to have the natural solace of the company of ones own children or for the duty of bringing them up in proper manner. Needless to say the respondent-husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent-husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is of responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children. However, in the present case, we have to decide in the interest of the child as to who would be in a better position to look after the childs welfare and interest. The general view that the Courts have taken is that the interest and welfare of the child is paramount. While it is no doubt true that under the Hindu Law, the father is the natural guardian of a minor after the age of six years, the Court while considering the grant of custody of the minor to him has to take into account other factors as well, such as the capacity of the father to look after the childs needs and to arrange for his upbringing. It also has to be seen whether in view of his other commitments, the father is in any position to give personal attention to the childs over-all development.16. As indicated hereinbefore, we have spoken to the child who, in our view, is intelligent and appears to be capable of expressing his preference. In fact, he has in no uncertain terms indicated his desire to stay with his mother. His mothers second marriage, instead of proving to be a disadvantage, has proved to be beneficial for the child who seems to be happy and contented in his present situation and we do not think it would be right to unsettle the same. 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 childs 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 childs education. The appellant should not also prevent the respondent-father 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.