Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.12.2013
+ MAT. APP. (FC) NO.29/2013, CM APPL.12745/2013
LT COL MANISH SEHGAL ..... Appellant
Through: Mr. Vikas Tomar, Advocate
along with appellant in person.
versus
MRS MEENU SEHGAL ..... Respondent
Through: Mr. Akhil Sibal & Mr. Bharat Arora,
Advocates
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. NAJMI WAZIRI (Open Court)
th
1. This is a father’s appeal against an order of 5 August 2013 by the
Family Court granting custody of his two minor daughters to their
mother – the respondent. The respondent/mother had earlier been
granted interim custody by the same court for the Diwali vacations
th th
and the school winter holidays last year i.e. on 14 and 15
th th
November, 2012 and also from 29 December, 2012 to 6 January,
Mat. App. (FC) No.29/2013 Page 1 of 15
th
2013 respectively. The couple had separated on 16 August, 2012.
The mother had filed the application for guardianship and interim
st
custody of the minor children on 1 November, 2012.
2. Upon being permitted by the Court, the mother met the children Sana
and Sarah (aged 7 and 9 years) during the Diwali festival in Lucknow,
where they are studying in classes 4 and 6 respectively in City
Montessori School. However for the winter vacations, she was not
given their custody by the father. Pursuant to the proceedings of non
compliance of the latter order, the Family Court directed the
Commissioner of Police to depute a person not below the rank of ACP
/ a lady officer to accompany the petitioner to Lucknow and bring the
children along with the respondent to the Family Court. The father
and the minor children appeared in Court and the application of the
th
mother was disposed off on 18 May, 2013. Against this order both
parents appealed to the High Court. The appeals were disposed off on
th
29 May, 2013 with a direction to the Trial Judge to consider afresh
the statements of the parties before it for an interim arrangement not
only for the summer vacations but also interim arrangements during
the pendency of the proceedings before the Trial Judge. The High
Mat. App. (FC) No.29/2013 Page 2 of 15
Court made it clear that the Family Court would not be affected by the
opinion expressed by it for the fresh reconsideration while giving
directions which the Trial Court may be required to give.
3. Both parties moved applications for modification of the order dated
th
18 May, 2013. The application moved by the mother sought two
reliefs: i) grant of temporary custody of the minor girls for the ensuing
st th
summon vacations from 1 to 25 of June 2012 and ii) a decision
afresh for their interim custody during the pendency of the petition.
She claimed that she had been unduly deprived of the society of the
children although she had taken care of them and that such
deprivation had caused her immense mental agony and irreparable
loss. She also highlighted the fact that the father had not handed over
the custody of the children during the winter vacations despite clear
Court orders in that regard. In response the father stated that the
mother was only concerned about her personal care and career and
that it was, in fact, he who had been taking care of the children since
their birth as the mother had shown no such interest in their
upbringing. He further contended that the children were emotionally
attached to him and had categorically expressed their preference of
Mat. App. (FC) No.29/2013 Page 3 of 15
not wanting to be with their mother.
4. The Trial Court considered the contention of the parties. The
mother’s allegations and evidence was regarding alcoholism of the
father, his alleged extra material relationship with another lady, (who
the wife contended) was contemporaneously going through her own
divorce proceedings, letters between her and the present appellant in
this regard, their phone call records, proximity of the Delhi – Kalkaji
address of both persons. The materials relied on by the appellant
further were letters adduced by him– in opposition to the application
for custody, said to have been written by his daughters and by the
Abacus teacher – (the latter informing the father that the children were
getting disturbed perhaps because of the parents’ personal life
squabbles). The children’s letters relied upon by the father were not
found reliable by the Trial Court which reasoned that the children
who were living with their father, would not write letters of such
nature to him. The Family Court found the mother’s contention more
plausible and credible and the circumstances more conducive with the
mother for the custody of the children. The Trial Court had reasoned
that the letters were written after filing of the custody petition and
Mat. App. (FC) No.29/2013 Page 4 of 15
indeed if the children were in the habit of writing such letters to their
father – with whom they are living – then they must have written
letters earlier and subsequent to the ones adduced by the father.
However, for unexplained reasons, no other letters had been brought
on record. Therefore, no reliance was placed on the said letters.
5. While granting custody to the mother the Trial Court was mindful of
the law with respect to the grant of interim permanent custody of the
minor children in particular of female minors. It referred to Gaurav
Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 and Nil Ratan. v. Abhijit
Kundu Civil Appeal No.496/2008, which requires that issue of a
custody of the minor being a complex question should be solved with
a delicate human touch. That where a court deals with such a case,
neither statutes nor strict rules of evidence or of procedure ought to be
given privacy and that the paramount consideration in such cases
should be the wellbeing and welfare of the minor. That in such cases
of selecting a guardian, the Court would be bound to give due weight
to a child’s ordinary comfort, health, education, emotional
development and favourable surroundings. If the minor is old enough
to state his/her independent preference, the Court must consider such
Mat. App. (FC) No.29/2013 Page 5 of 15
preference as well though the final decision would rest with Court as
what would be conducive to the welfare of the minor.
6. During the course of the hearing before the Trial Court the children
had been brought to the Court since the counsel for the petitioner had
sought to examine them in chamber but on that date the applicant
gave up this request. However, since the children had come all the
way from Lucknow, the Trial Court thought it fit to examine them.
The observations in this regard are relevant:
“However, since both the children were brought in the
Court therefore, this Court decided to interact with the
children in the chamber and he also stated that he
conveyed this fact to the counsel for the respondent
also. It seems that since this fact was conveyed to the
counsel for the respondent that petitioner will not press
for her prayer to examine the daughters in chambers
therefore, respondent brought the daughters in the
court but they were brought without being tutored.
Seeking the plight and fear on the face of both the
children we all three decided that will not say any such
thing to any of the party and if the respondent will
inquire from the children then they will stated that they
were asked about their school friends at Lucknow.”
“14. Last but not the least it may be mentioned that
on 11.7.2013 after counsel for the petitioner moved
application for early hearing, I talked to both the
children in the chamber which took place between the
undersigned and children hardly for 5 minutes. I
talked to children and asked them as to how was their
Mat. App. (FC) No.29/2013 Page 6 of 15
stay with their mother during the summer vacation.
They stated that it was wonderful. They further told
that they have come from Lucknow and in Lucknow
their grandmother is not there as she has suffered
fracture of her leg and she is in Delhi. Subsequently I
asked a very small question to both children that “ Ab
kiske pass rehna hai, papa ke pass or mummi ke
pass?” Elder of the two kids kept silent but the
younger one replied that “mujhe to mammi ke pass
rehna hai” . When this question was put to the elder
one she also stated that “ Mujhe bhi mammi ke pass
rehna hai per ye bat boli to bahut daant padegi.”
7. The court granted custody of the minor children to the mother after
concluding that it would be in the interest and the welfare of both the
children that she have their custody. Reliance was placed upon a case
titled Ayesha Bhati v. Vijay R. Bhatia AIR 1988 Delhi 149 which had
held that wishes expressed by minor are an important consideration.
8. The appellant’s counsel, Senior Advocate Mr. Sudhir Nandrajog,
argued that the father was threatened by the respondent/mother that
she would have him put behind the bars; that she shied away from
th th
meeting the children in Lucknow between 11 and 15 November,
2012; that the non-handing over the custody of the minor daughters
was on account of their ill-health and not for any other reason; that the
allusion to an extra marital relationship of the father was a further
Mat. App. (FC) No.29/2013 Page 7 of 15
attempt to prejudice the Court and that indeed the Court did take this
into account as a factor for granting custody to the mother, whereas in
fact there was no truth in the said allegation; that the children
themselves shared with the High Court and later through their letters
to their father that they did not wish to either meet or stay with their
mother who is otherwise preoccupied with her professional career and
personal care only. It was argued that the letters of the children which
are on record and their interaction with this Court – earlier on
24.5.2013 and during the course of this appeal have revealed that they
do not wish to stay with their mother but with the appellant/father;
that the father is providing them all the care, love and affection which
ought to be given to them and he is best suited in the circumstances
for their nurturing as the children will always be in a protected
environment. In this context it was submitted that the accommodation
provided to senior officers of the Army is most suitable for their
healthy and proper upbringing; and that the Trial Court should not
have interviewed the children in July 2013 when they had already
expressed their desire to stay with the father to the High Court.
Counsel urged that changing their school or transfer or handling over
Mat. App. (FC) No.29/2013 Page 8 of 15
their custody to the mother at this stage would seriously upset them
psychologically and socially and such upheaval would affect their
personal growth; handing them over to the mother at this juncture
would severely upset their academic session too which has reached
the stage of their academic examinations and finally, that the
impugned order was not in the welfare of the children which being the
paramount interest was ignored by the trial court.
9. Mr. Akhil Sibal, learned counsel for the mother, contended that the
statement of the children relied upon by the Trial Court was the one
after they had spent some holidays with the mother and that the
statement was the one nearest in time to the custody order, therefore it
ought to have been and was correctly taken into consideration. He
contended that besides there was no impediment or bar upon the
Court to interact with the children to ascertain their preference.
10. Having heard the learned counsel and considered the facts of the case,
this Court is of the opinion that the Family Court has considered all
aspects of the case and addressed itself primarily as to the interest and
welfare of the children before concluding and ordering that their
custody should be given to their mother. This Court is also conscious
Mat. App. (FC) No.29/2013 Page 9 of 15
that the girls aged about 7 to 9 years would need due care and
attention of their mother more than anybody else. At this tender phase
in their life, it is a mother who would be more aware and alive to their
emotional and physical needs and the father being a senior officer in
the Army -- being on call of duty – may not be able to attend to these
delicate requirements.
11. The learned counsel for the appellant relied upon three decisions
R.V.Srinath Prasad v. Nandamuri Jayakrishna & Ors. AIR 2001 SC
1056, Athar Hussain v. Syed Siraj Ahmed & Ors. AIR 2010 SC 1417
and Sheila B.Das v. P.R. Sugasree AIR 2006 SC 1343. In the first
case, the Supreme Court held that: “custody of minor children is
sensitive. It is also a matter involving of sentimental attachment. Such
a matter is to be approached and tackled carefully. A balance has to
be struck between attachment and sentiments of the parties towards
the minor children and welfare of the minors, which had paramount
interest.” The subsequent other two cases also are on the same lines
but focusing primarily on the welfare of the children irrespective of
the allegations that the parties may have made against each other.
Mat. App. (FC) No.29/2013 Page 10 of 15
12. During the course of the hearing the learned counsel for the
respondent mother had offered – upon instructions from her, who is
present in the court – that keeping in view that the children are in the
middle of their academic session and would have their final exams
commencing shortly – and she being a teacher at Amity International
School and hence alive to this fact would be ready and willing to shift
to Lucknow simply to be with and take care and custody of her
daughters so as not to disturb their academic session provided
however that she would be free to move the children to Delhi to have
them admitted in Army Public School or Amity International School
or such other prestigious schools as may be suitable or convenient and
appropriate for their further studies after their final examinations are
over. Although in terms of the impugned order which grants
immediate interim custody to the mother and for her to shift the
children to Delhi even during mid-session academic session, the
willingness of the mother to move to Lucknow clearly shows her
bona fides and her concern for the welfare of the children. This Courts
notices that the mother has expressed her willingness to relocate from
Delhi to Lucknow albeit temporarily even though she has a regular
Mat. App. (FC) No.29/2013 Page 11 of 15
job as a school teacher in Amity International School, Noida merely
for the overall benefit and psychological health of her daughters and
in their academic interest too.
13. This Court has perused the letters purportedly written by the children
and finds that the language used and content of both near identical
especially in the beginning and the end i.e. : “Dear Papa, ....... I want
to stay with you.” Indeed the expressions used and the flow of thought
are such as would not be ordinarily attributable to a 9 year old child
and certainly not to a 7 year old. Likewise the identical allusion by
both of them to their mother as “that lady” appears strained and
contrived, if not downright unnatural. They both have the appearance
of being dictated by somebody else and for that reason, facially,
cannot be relied upon. Indeed, it bodes an unhealthy surrounding and
atmosphere for the children if they are indeed dictated to write such
unfortunate letters about their own mother to their father with whom
they reside.
14. Counsel for the appellant had during the hearing urged that the Family
Court Judge was biased and showed it during the hearing especially in
the manner of conducting the interview with the child. No
Mat. App. (FC) No.29/2013 Page 12 of 15
contemporaneous affidavit or application alleging bias appears to
have been moved to enable the Judge to deal with such allegations.
Furthermore, the grounds urged are general in nature. Appellate
Courts cannot be expected to render findings of bias on the basis of
such tenuous pleadings and materials. Again, the argument that this
Court should disregard the observations and impressions of the Trial
Court since on two separate occasions, the Judges of this Court
recorded contrary observations is unpersuasive. There orders were
not final; but made tentatively and cannot override the obligation of
their Court to consider the correctness or soundness of the impugned
order, and the overall welfare and well being of the two children.
15. For the above reasons, we are of the opinion that the impugned
judgment and order does not suffer from any infirmity and does not
call for any interference. However, keeping the larger interest and
care of the minor child and especially the fact that the removing them
from the school namely City Montessori School, Lucknow at this
stage could be upsetting to them, the Court hereby directs as follows:
(i) The respondent-wife, in line with the statement made on her
behalf, shall move to Lucknow in a week’s time and the custody of
Mat. App. (FC) No.29/2013 Page 13 of 15
th
the children shall be handed over to her on or before 30 December
2013.
(ii) The children shall remain in the custody of the mother-
respondent thereafter during the pendency of the proceedings in the
Family Court. The appellant and the respondent-wife shall ensure that
the transfer certificates of two children are obtained to ensure their
smooth admission into the Army Public School in Delhi or Noida or
some other school of the like nature in the forthcoming academic
session 2014-2015. The respondent-wife shall not deny reasonable
visitation rights to the father which shall be worked out mutually in a
spirit of co-operation.
(iii) The Trial Court shall proceed to record the evidence and
submissions of the parties and after adjudicating upon the merits of
the petition for custody render final judgment at its earliest
st
convenience preferably by 31 May, 2014. The Trial Court shall
proceed with the matter unaffected by the observations made in this
order as to the merits.
(iv) The present direction shall bind the parties and be subject to
final orders in the custody petition.
Mat. App. (FC) No.29/2013 Page 14 of 15
16. To give effect to the above directions, counsel for the parties shall be
th
present before the Guardianship Court on 6 January, 2014. This
Court hereby clarifies that it has not expressed its approval with
respect to the Trial Court’s observations as regards the appellant’s
alleged matrimonial relationship. Those are ultimately matters for
trial, and nothing stated or observed here shall be construed as an
expression of the merit of either party’s claim which has to be decided
finally, after considering rival contentions and the materials placed on
the record of the Trial Court.
17. The appeal is dismissed, subject to the above modifications. No costs.
Order Dasti to both parties.
NAJMI WAZIRI
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
DECEMBER 18, 2013
RN
Mat. App. (FC) No.29/2013 Page 15 of 15
Date of Decision: 18.12.2013
+ MAT. APP. (FC) NO.29/2013, CM APPL.12745/2013
LT COL MANISH SEHGAL ..... Appellant
Through: Mr. Vikas Tomar, Advocate
along with appellant in person.
versus
MRS MEENU SEHGAL ..... Respondent
Through: Mr. Akhil Sibal & Mr. Bharat Arora,
Advocates
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. NAJMI WAZIRI (Open Court)
th
1. This is a father’s appeal against an order of 5 August 2013 by the
Family Court granting custody of his two minor daughters to their
mother – the respondent. The respondent/mother had earlier been
granted interim custody by the same court for the Diwali vacations
th th
and the school winter holidays last year i.e. on 14 and 15
th th
November, 2012 and also from 29 December, 2012 to 6 January,
Mat. App. (FC) No.29/2013 Page 1 of 15
th
2013 respectively. The couple had separated on 16 August, 2012.
The mother had filed the application for guardianship and interim
st
custody of the minor children on 1 November, 2012.
2. Upon being permitted by the Court, the mother met the children Sana
and Sarah (aged 7 and 9 years) during the Diwali festival in Lucknow,
where they are studying in classes 4 and 6 respectively in City
Montessori School. However for the winter vacations, she was not
given their custody by the father. Pursuant to the proceedings of non
compliance of the latter order, the Family Court directed the
Commissioner of Police to depute a person not below the rank of ACP
/ a lady officer to accompany the petitioner to Lucknow and bring the
children along with the respondent to the Family Court. The father
and the minor children appeared in Court and the application of the
th
mother was disposed off on 18 May, 2013. Against this order both
parents appealed to the High Court. The appeals were disposed off on
th
29 May, 2013 with a direction to the Trial Judge to consider afresh
the statements of the parties before it for an interim arrangement not
only for the summer vacations but also interim arrangements during
the pendency of the proceedings before the Trial Judge. The High
Mat. App. (FC) No.29/2013 Page 2 of 15
Court made it clear that the Family Court would not be affected by the
opinion expressed by it for the fresh reconsideration while giving
directions which the Trial Court may be required to give.
3. Both parties moved applications for modification of the order dated
th
18 May, 2013. The application moved by the mother sought two
reliefs: i) grant of temporary custody of the minor girls for the ensuing
st th
summon vacations from 1 to 25 of June 2012 and ii) a decision
afresh for their interim custody during the pendency of the petition.
She claimed that she had been unduly deprived of the society of the
children although she had taken care of them and that such
deprivation had caused her immense mental agony and irreparable
loss. She also highlighted the fact that the father had not handed over
the custody of the children during the winter vacations despite clear
Court orders in that regard. In response the father stated that the
mother was only concerned about her personal care and career and
that it was, in fact, he who had been taking care of the children since
their birth as the mother had shown no such interest in their
upbringing. He further contended that the children were emotionally
attached to him and had categorically expressed their preference of
Mat. App. (FC) No.29/2013 Page 3 of 15
not wanting to be with their mother.
4. The Trial Court considered the contention of the parties. The
mother’s allegations and evidence was regarding alcoholism of the
father, his alleged extra material relationship with another lady, (who
the wife contended) was contemporaneously going through her own
divorce proceedings, letters between her and the present appellant in
this regard, their phone call records, proximity of the Delhi – Kalkaji
address of both persons. The materials relied on by the appellant
further were letters adduced by him– in opposition to the application
for custody, said to have been written by his daughters and by the
Abacus teacher – (the latter informing the father that the children were
getting disturbed perhaps because of the parents’ personal life
squabbles). The children’s letters relied upon by the father were not
found reliable by the Trial Court which reasoned that the children
who were living with their father, would not write letters of such
nature to him. The Family Court found the mother’s contention more
plausible and credible and the circumstances more conducive with the
mother for the custody of the children. The Trial Court had reasoned
that the letters were written after filing of the custody petition and
Mat. App. (FC) No.29/2013 Page 4 of 15
indeed if the children were in the habit of writing such letters to their
father – with whom they are living – then they must have written
letters earlier and subsequent to the ones adduced by the father.
However, for unexplained reasons, no other letters had been brought
on record. Therefore, no reliance was placed on the said letters.
5. While granting custody to the mother the Trial Court was mindful of
the law with respect to the grant of interim permanent custody of the
minor children in particular of female minors. It referred to Gaurav
Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 and Nil Ratan. v. Abhijit
Kundu Civil Appeal No.496/2008, which requires that issue of a
custody of the minor being a complex question should be solved with
a delicate human touch. That where a court deals with such a case,
neither statutes nor strict rules of evidence or of procedure ought to be
given privacy and that the paramount consideration in such cases
should be the wellbeing and welfare of the minor. That in such cases
of selecting a guardian, the Court would be bound to give due weight
to a child’s ordinary comfort, health, education, emotional
development and favourable surroundings. If the minor is old enough
to state his/her independent preference, the Court must consider such
Mat. App. (FC) No.29/2013 Page 5 of 15
preference as well though the final decision would rest with Court as
what would be conducive to the welfare of the minor.
6. During the course of the hearing before the Trial Court the children
had been brought to the Court since the counsel for the petitioner had
sought to examine them in chamber but on that date the applicant
gave up this request. However, since the children had come all the
way from Lucknow, the Trial Court thought it fit to examine them.
The observations in this regard are relevant:
“However, since both the children were brought in the
Court therefore, this Court decided to interact with the
children in the chamber and he also stated that he
conveyed this fact to the counsel for the respondent
also. It seems that since this fact was conveyed to the
counsel for the respondent that petitioner will not press
for her prayer to examine the daughters in chambers
therefore, respondent brought the daughters in the
court but they were brought without being tutored.
Seeking the plight and fear on the face of both the
children we all three decided that will not say any such
thing to any of the party and if the respondent will
inquire from the children then they will stated that they
were asked about their school friends at Lucknow.”
“14. Last but not the least it may be mentioned that
on 11.7.2013 after counsel for the petitioner moved
application for early hearing, I talked to both the
children in the chamber which took place between the
undersigned and children hardly for 5 minutes. I
talked to children and asked them as to how was their
Mat. App. (FC) No.29/2013 Page 6 of 15
stay with their mother during the summer vacation.
They stated that it was wonderful. They further told
that they have come from Lucknow and in Lucknow
their grandmother is not there as she has suffered
fracture of her leg and she is in Delhi. Subsequently I
asked a very small question to both children that “ Ab
kiske pass rehna hai, papa ke pass or mummi ke
pass?” Elder of the two kids kept silent but the
younger one replied that “mujhe to mammi ke pass
rehna hai” . When this question was put to the elder
one she also stated that “ Mujhe bhi mammi ke pass
rehna hai per ye bat boli to bahut daant padegi.”
7. The court granted custody of the minor children to the mother after
concluding that it would be in the interest and the welfare of both the
children that she have their custody. Reliance was placed upon a case
titled Ayesha Bhati v. Vijay R. Bhatia AIR 1988 Delhi 149 which had
held that wishes expressed by minor are an important consideration.
8. The appellant’s counsel, Senior Advocate Mr. Sudhir Nandrajog,
argued that the father was threatened by the respondent/mother that
she would have him put behind the bars; that she shied away from
th th
meeting the children in Lucknow between 11 and 15 November,
2012; that the non-handing over the custody of the minor daughters
was on account of their ill-health and not for any other reason; that the
allusion to an extra marital relationship of the father was a further
Mat. App. (FC) No.29/2013 Page 7 of 15
attempt to prejudice the Court and that indeed the Court did take this
into account as a factor for granting custody to the mother, whereas in
fact there was no truth in the said allegation; that the children
themselves shared with the High Court and later through their letters
to their father that they did not wish to either meet or stay with their
mother who is otherwise preoccupied with her professional career and
personal care only. It was argued that the letters of the children which
are on record and their interaction with this Court – earlier on
24.5.2013 and during the course of this appeal have revealed that they
do not wish to stay with their mother but with the appellant/father;
that the father is providing them all the care, love and affection which
ought to be given to them and he is best suited in the circumstances
for their nurturing as the children will always be in a protected
environment. In this context it was submitted that the accommodation
provided to senior officers of the Army is most suitable for their
healthy and proper upbringing; and that the Trial Court should not
have interviewed the children in July 2013 when they had already
expressed their desire to stay with the father to the High Court.
Counsel urged that changing their school or transfer or handling over
Mat. App. (FC) No.29/2013 Page 8 of 15
their custody to the mother at this stage would seriously upset them
psychologically and socially and such upheaval would affect their
personal growth; handing them over to the mother at this juncture
would severely upset their academic session too which has reached
the stage of their academic examinations and finally, that the
impugned order was not in the welfare of the children which being the
paramount interest was ignored by the trial court.
9. Mr. Akhil Sibal, learned counsel for the mother, contended that the
statement of the children relied upon by the Trial Court was the one
after they had spent some holidays with the mother and that the
statement was the one nearest in time to the custody order, therefore it
ought to have been and was correctly taken into consideration. He
contended that besides there was no impediment or bar upon the
Court to interact with the children to ascertain their preference.
10. Having heard the learned counsel and considered the facts of the case,
this Court is of the opinion that the Family Court has considered all
aspects of the case and addressed itself primarily as to the interest and
welfare of the children before concluding and ordering that their
custody should be given to their mother. This Court is also conscious
Mat. App. (FC) No.29/2013 Page 9 of 15
that the girls aged about 7 to 9 years would need due care and
attention of their mother more than anybody else. At this tender phase
in their life, it is a mother who would be more aware and alive to their
emotional and physical needs and the father being a senior officer in
the Army -- being on call of duty – may not be able to attend to these
delicate requirements.
11. The learned counsel for the appellant relied upon three decisions
R.V.Srinath Prasad v. Nandamuri Jayakrishna & Ors. AIR 2001 SC
1056, Athar Hussain v. Syed Siraj Ahmed & Ors. AIR 2010 SC 1417
and Sheila B.Das v. P.R. Sugasree AIR 2006 SC 1343. In the first
case, the Supreme Court held that: “custody of minor children is
sensitive. It is also a matter involving of sentimental attachment. Such
a matter is to be approached and tackled carefully. A balance has to
be struck between attachment and sentiments of the parties towards
the minor children and welfare of the minors, which had paramount
interest.” The subsequent other two cases also are on the same lines
but focusing primarily on the welfare of the children irrespective of
the allegations that the parties may have made against each other.
Mat. App. (FC) No.29/2013 Page 10 of 15
12. During the course of the hearing the learned counsel for the
respondent mother had offered – upon instructions from her, who is
present in the court – that keeping in view that the children are in the
middle of their academic session and would have their final exams
commencing shortly – and she being a teacher at Amity International
School and hence alive to this fact would be ready and willing to shift
to Lucknow simply to be with and take care and custody of her
daughters so as not to disturb their academic session provided
however that she would be free to move the children to Delhi to have
them admitted in Army Public School or Amity International School
or such other prestigious schools as may be suitable or convenient and
appropriate for their further studies after their final examinations are
over. Although in terms of the impugned order which grants
immediate interim custody to the mother and for her to shift the
children to Delhi even during mid-session academic session, the
willingness of the mother to move to Lucknow clearly shows her
bona fides and her concern for the welfare of the children. This Courts
notices that the mother has expressed her willingness to relocate from
Delhi to Lucknow albeit temporarily even though she has a regular
Mat. App. (FC) No.29/2013 Page 11 of 15
job as a school teacher in Amity International School, Noida merely
for the overall benefit and psychological health of her daughters and
in their academic interest too.
13. This Court has perused the letters purportedly written by the children
and finds that the language used and content of both near identical
especially in the beginning and the end i.e. : “Dear Papa, ....... I want
to stay with you.” Indeed the expressions used and the flow of thought
are such as would not be ordinarily attributable to a 9 year old child
and certainly not to a 7 year old. Likewise the identical allusion by
both of them to their mother as “that lady” appears strained and
contrived, if not downright unnatural. They both have the appearance
of being dictated by somebody else and for that reason, facially,
cannot be relied upon. Indeed, it bodes an unhealthy surrounding and
atmosphere for the children if they are indeed dictated to write such
unfortunate letters about their own mother to their father with whom
they reside.
14. Counsel for the appellant had during the hearing urged that the Family
Court Judge was biased and showed it during the hearing especially in
the manner of conducting the interview with the child. No
Mat. App. (FC) No.29/2013 Page 12 of 15
contemporaneous affidavit or application alleging bias appears to
have been moved to enable the Judge to deal with such allegations.
Furthermore, the grounds urged are general in nature. Appellate
Courts cannot be expected to render findings of bias on the basis of
such tenuous pleadings and materials. Again, the argument that this
Court should disregard the observations and impressions of the Trial
Court since on two separate occasions, the Judges of this Court
recorded contrary observations is unpersuasive. There orders were
not final; but made tentatively and cannot override the obligation of
their Court to consider the correctness or soundness of the impugned
order, and the overall welfare and well being of the two children.
15. For the above reasons, we are of the opinion that the impugned
judgment and order does not suffer from any infirmity and does not
call for any interference. However, keeping the larger interest and
care of the minor child and especially the fact that the removing them
from the school namely City Montessori School, Lucknow at this
stage could be upsetting to them, the Court hereby directs as follows:
(i) The respondent-wife, in line with the statement made on her
behalf, shall move to Lucknow in a week’s time and the custody of
Mat. App. (FC) No.29/2013 Page 13 of 15
th
the children shall be handed over to her on or before 30 December
2013.
(ii) The children shall remain in the custody of the mother-
respondent thereafter during the pendency of the proceedings in the
Family Court. The appellant and the respondent-wife shall ensure that
the transfer certificates of two children are obtained to ensure their
smooth admission into the Army Public School in Delhi or Noida or
some other school of the like nature in the forthcoming academic
session 2014-2015. The respondent-wife shall not deny reasonable
visitation rights to the father which shall be worked out mutually in a
spirit of co-operation.
(iii) The Trial Court shall proceed to record the evidence and
submissions of the parties and after adjudicating upon the merits of
the petition for custody render final judgment at its earliest
st
convenience preferably by 31 May, 2014. The Trial Court shall
proceed with the matter unaffected by the observations made in this
order as to the merits.
(iv) The present direction shall bind the parties and be subject to
final orders in the custody petition.
Mat. App. (FC) No.29/2013 Page 14 of 15
16. To give effect to the above directions, counsel for the parties shall be
th
present before the Guardianship Court on 6 January, 2014. This
Court hereby clarifies that it has not expressed its approval with
respect to the Trial Court’s observations as regards the appellant’s
alleged matrimonial relationship. Those are ultimately matters for
trial, and nothing stated or observed here shall be construed as an
expression of the merit of either party’s claim which has to be decided
finally, after considering rival contentions and the materials placed on
the record of the Trial Court.
17. The appeal is dismissed, subject to the above modifications. No costs.
Order Dasti to both parties.
NAJMI WAZIRI
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
DECEMBER 18, 2013
RN
Mat. App. (FC) No.29/2013 Page 15 of 15