Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.53885389 Of 2019
(arising out of SLP(C)Nos.1591215913 of 2018)
SHEOLI HATI ... APPELLANT(S)
VERSUS
SOMNATH DAS ... RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
Leave granted.
2. The appellant aggrieved by the judgment dated
26.04.2018 passed by a Division Bench of the High Court
of Jharkhand at Ranchi has come up in these appeals.
The impugned judgment of the High Court was passed in
First Appeal No.59 of 2016 filed by the appellant and
First Appeal No.68 of 2016 filed by the respondent both
challenging the order dated 31.03.2016 passed by the
Principal Judge, Family Court, Jamshedpur in
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.10.23
14:32:05 IST
Reason:
Guardianship Case No.11 of 2012 filed by the respondent
under Sections 7 and 12 of the Guardian and Wards Act,
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1890.
3. The brief facts and circumstances giving rise to
these appeals are:
3.1 The appellant and the respondent were married
in the year 2003. There has been matrimonial
dispute between the parties since the year
2006. A girl child was born to the appellant
and the respondent on 09.04.2007, named as
Aditi. The appellant filed complaint against
the husband before various authorities,
employer of the respondent as well as National
Human Rights Commission. A petition for
seeking restitution of conjugal rights under
Section 9 of the Hindu Marriage Act, 1955 was
filed by the respondent at Bengaluru where the
respondent was residing. In the year 2008, the
appellant lodged FIR against the respondent
under Section 498A of the IPC being Case
No.204 of 2008. In the year 2008, the
respondent filed an application for seeking a
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decree of divorce before the Family Court,
Bengaluru which was registered as Matrimonial
Case No.3358 of 2008.
3.2 The respondent filed an application before the
High Court of Jharkhand at Ranchi seeking
anticipatory bail in connection with Kadma PS
Case No.204 of 2008 in which case parties were
referred to mediation and conciliation to
amicably resolve their issues. On 11.09.2009,
the Principal Judge, Family Court at Bengaluru
granted ex parte decree of divorce dated
11.09.2009. During the pendency of the
Anticipatory Bail Application being No.518 of
2009, the parties amicably settled all their
disputes before Jharkhand Legal Services
Authority. A Settlement dated 19.12.2009
between the parties was communicated to the
High Court. As per the terms of the
settlement, the respondent agreed to pay an
amount of Rs.5,00,000/ as permanent alimony
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to the appellant. Further, the respondent
agreed to deposit a sum of Rs.5,00,000/ in
the name of Aditi for her all time
maintenance. The appellant further agreed not
to challenge ex parte divorce decree. The
appellant also agreed to allow the respondent
to meet their child once in every two months
starting from January, 2010. The High Court
disposed of the matter in terms of the
settlement.
3.3 The respondent alleging obstruction by the
appellant in his visiting rights filed an
application seeking custody of the child,
Aditi under Sections 7 and 12 of the Guardian
and Wards Act, 1890 at Bengaluru. The said
proceedings under Guardian and Wards Act were
transferred to Family Court at Jamshedpur
under order of this Court dated 27.03.2012.
The appellant filed written statement in
Guardianship Case No.11 of 2012. The
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respondent made an amendment application
before the Family Court, Jamshedpur praying
for an alternative relief for addition of a
prayer in his application in Guardianship
Case, i.e., for directing the child to be
admitted in any reputed residential/boarding
school in India at the expenses of the
respondent, which amendment application was
allowed by an order dated 16.05.2013. The
Principal Judge, Family Court by order dated
31.03.2016 decided the Guardianship Case
No.11 of 2012. It is to be noted that in the
Guardianship proceedings the respondent has
given up his claim of the custody of child and
confined his case to alternative prayer, i.e.,
direction to admit the child in a boarding
school. The Family Court, Jamshedpur in
paragraph 41 of the judgment directed:
"41. Thus, in view of the
discussions made above, I come to
the conclusion that minor daughter
of the petitioner and respondent
Aditi Bishaskha Das shall continue
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in the care, custody and
guardianship of her mother till she
reaches the age of 11 years and
shall continue to pursue her
education from Jamshedpur along with
her mother. However, the petitioner
shall have the visitation right as
is continuing since before i.e.
during the pendency of the case.
However, the petitioner shall be
entitled to the custody of the child
for half of each vacation of the
school where Aditi is or shall be
studying and for the first half of
vacation Aditi shall be in the care
and custody of her father i.e.
petitioner and for the second half
of the vacation she shall be under
the care and custody of her mother.
The vacations referred to above are
the Summer and Winter vacations in
every school. Further, Aditi upon
attaining the age of 12 years i.e.
for the academic session 20192020
she shall be sent to a boarding
school of repute where she qualifies
and is able to get admission. The
entire cost of such Boarding School
shall be borne by the petitioner and
once Aditi gets into the Boading
School then the respondent shall
have the right to visit her daughter
as permitted by the School calendar
but at the cost of the petitioner
and the petitioner shall pay such
cost which shall include the
travelling airfare and other
expenses in advance. Issue No.V is
decided accordingly. The custody in
course of vacation shall continue as
before.”
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3.4 The Family Court directed that Aditi shall
continue in the custody and guardianship of
her mother till she reaches the age of 11
years and continue to pursue her education
from Jamshedpur. The respondent was allowed
visitation right and also allowed custody of
the child for half of each vacation of the
school. First half of the vacation be in the
care and custody of her father and second half
be in the custody of the mother. The Family
Court further directed that for the academic
session 20192020 she shall be sent to a
boarding school of repute where she qualifies
and is able to get admission.
3.5 Aggrieved by the judgment of the Family Court
both the parties have filed appeals in the
High Court. The appellant filed First Appeal
No.59 of 2016 and the respondent filed First
Appeal No.68 of 2016. The High Court
interacted with the child on several
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occasions. The High Court in the aforesaid
appeals passed an order dated 17.11.2016
proposing to the parties that the minor child
be admitted in Sacred Heart Convent School,
Jamshedpur which is a very good school for
girls in Jamshedpur. On 28.11.2016, the High
Court directed that Aditi be admitted in
Sacred Heart Convent School, Jamshedpur. The
High Court also increased the visiting hours
of the respondent and also permitted the
respondent to get the child registered for
admission in La Martiniere Girls School,
Kolkata. Against the order dated 28.11.2016,
the appellant filed SLP(C)Nos.3791537916 of
2016 which were dismissed by this Court by
order dated 23.12.2016. By the subsequent
order dated 26.04.2018 which is impugned in
the present appeals, the High Court directed
the child to be admitted in Good Shepherd
International School, Ooty in Class IV which
is a residential institution affiliated to
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ICSE for the Session 20182019, which
commenced from 21.07.2018. These appeals were
taken by this Court on 10.07.2018. In its
order dated 10.07.2018 following observations
were made by this Court:
"After hearing the learned
counsel for the parties yesterday as
well as today, we are of the opinion
that there is no need to stay the
directions of the High Court in the
impugned order whereby the High
Court has directed that the child
Aditi Bisakha Das be admitted in
Good Shephard International School,
Ooty in Class V where the respondent
has already secured admission for
her. This arrangement, as per the
High Court's order, is made for the
Academic Year 201819. We also find
that the High Court has passed this
order after weighing and discussing
all the alternatives and 2 pros and
cons of the matter and has formed
its opinion that it is one of the
most suitable solutions.
We feel that once such an order
is given on objective
considerations, it is better that
the child is admitted in the said
School in the current academic year
in order to find out as to how she
is able to cope up with and studies
in the said School at Ooty and what
kind of progress she is able to make
on shifting her from the present
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atmosphere to a boarding School.”
3.6 In pursuance of the order of the High Court
dated 26.04.2018, ultimately, the child, Aditi
was admitted in Good Shephard International
School, Ooty reluctantly by the appellant.
With regard to the visiting rights of the
respondent orders were passed for the winter
vacation by this Court on 12.12.2018. After
spending second half of the winter vacation
with father the child went to Jamshedpur to
attend birthday of her mother on 13.01.2019.
After attending birthday she was to catch a
flight for Bengaluru from Ranchi. Father along
with an Advocate was to take the child. On
14.01.2019 at the Airport child complained to
the CISF personnel that she did not want to go
along with father to Bengaluru. The CISF
officer informed the concerned Police Station
and the lady Police personnel interacted with
the child. Although the appellant and her
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father were telephonically informed but they
did not come to take the child and the child
was ultimately lodged in a shelter home. The
Child Welfare Committee, Ranchi (Jharkhand)
also interacted with the child. This Court
vide order dated 21.01.2019 directed
following:
“The child being student in a
good school and her session coming
to close, we are of the view that
first thing to be done is to direct
the Child Welfare Committee to send
the child to the school.
Respondent/father will bear all
expenses for traveling of the child
along with one woman companion which
may be deputed by the Child Welfare
Committee to take the child and
handover the child to the Principal
of the School. This order shall be
complied by the Child Welfare
Committee within three days from the
date of production of this order.
All other issues between the parties
shall be taken care subsequently. We
further direct that report of the
Child Welfare Committee be submitted
in a sealed cover before this Court.
The Principal of the school also
submit an interim report of the
academic session in a sealed cover
before this Court. Reports be
submitted within two weeks. The
school may also send detail report
by the end of this academic session.
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Accordingly, I.A. is disposed of.
List the matters after four weeks.”
3.7 After aforesaid order dated 21.01.2019, the
child was handed over to the School to
complete her session. Further, on 21.02.2019,
the report from Child Welfare Committee,
Ranchi, Jharkhand and on 29.01.2019 and
02.02.2019 report from Good Shepherd
International School, Ooty were received. By
order dated 03.05.2019 on the request of the
mother she was permitted to have the custody
of the child during the entire vacation with
effect from 22.05.2019. Thereafter, the matter
was heard on 01.07.2019.
4. Learned counsel for the appellant submits that the
child is not doing well at Good Shepherd International
School, Ooty and she has suffered medical issues also.
The appellant submits that proper medical care was not
13
taken by the School. Learned counsel submits that the
appellant has always contended that child shall be
allowed to get her education at Jamshedpur where the
mother is residing. An I.A.No.74433 of 2019 has been
filed by the appellant where the second prayer is that
Aditi to be admitted in some reputed school for the
Academic Session 20192020 in Jamshedpur or
alternatively Aditi be admitted in some boarding
school near Jamshedpur. In the application, the
appellant has referred to LaMartiniere Girls School,
Kolkata and Loreto Convent Entally, Kolkata.
5. Learned counsel for the appellant has also referred
to medical prescription dated 20.05.2019 of one Dr.
Devi Prasad Rao, Child Specialist, Hospital Road, Ooty
and one further prescription dated 07.06.2019 of Aditi
from Zila Mansik Swasthaya Karyakaram, Jamshedpur, East
Singhbhoom, Jharkhand.
6. Learned counsel for the respondent refuting the
submissions of the counsel for the appellant contends
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that child Aditi has done very well in the institution,
Good Shepherd International School, Ooty. In reply
filed by the respondent, the respondent has referred to
various progress reports and certificates issued by the
Good Shepherd International School of the child for
Academic Session 20182019. Learned counsel submits
that the child has shown over all development and her
participation in all the activities inside the
classroom and outside, there is no complaint of health
issues. She participated in several competitions and
got prizes and certificates. The weight and height has
specially increased. In the reply affidavit, learned
counsel has referred to cocurricular report card of
the child. In her progress report, she has been
promoted to Class VI. It is submitted that it is the
appellant, who has always been creating hindrance in
normal development of the child. She has always been
from day one poisoning the child against the
respondent. The child has always been tutored to make
complaint against the respondent. The child is treated
in a manner by the appellant so as to alienate her from
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father. The child was in neutral environment and has
done well in the school in all fields which instead of
being appreciated by the appellant, she still wants
that child be taken out from the School for which
several tricks have been played by the appellant.
7. We have heard the learned counsel for the parties
and perused the records.
8. Before we proceed to enter into the submissions of
the parties, it is useful to refer to the order passed
by the High Court on 26.04.2018, which is impugned in
the present appeals. As noted above, the child was
initially studying in the institution, where appellant
is a teacher, i.e., Motilal Nehru Public School,
Jamshedpur. Now, pursuant to the orders of the High
Court, the child was admitted for the Academic Session
20172018 in Sacred Heart Convent School, Jamshedpur.
The High Court has noticed the report of Sacred Heart
Convent School, Jamshedpur, which was received from the
School on 21.03.2018. The report has been extracted by
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the High Court in paragraph No.16 of the judgment,
which is to the following effect:
"”Sub:School Performance Report of Aditi
Bishakaha Das.
Sir,
With reference to CASE No.Cont.(Cr.)08/2017
dated 4600/17.03.2018, Aditi Bishakaha Das,
who is presently studying is Std. V, having
Admission No.16510, is trying her best to come
up to the average level.
In the year 2017 when Aditi was admitted in
Sacred Heard Convent School she was below
average in her studies. Whenever her mother
was called by the class teacher her heath was
not permitting to visit the class teacher and
the coordinator of the Primary School. It
seems home atmosphere is not contucive for the
child to perform well in her studies.
The child is in the school only for six hours
and the rest of the time the child is at home.
Aditi is an intelligent girl. Parents co
operation is very important. It is up to the
parents to help the child and to cooperate
with the school authorities. Environment is
very important for the child's performance and
to do well in her studies. It is up to the
parents to decide her further. Residential
school might held her to do well in her future
studies.
Sister Mridula Ac.
Principal,
Sacred Heard Convent School, Jamshedpur.”
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9. Another factor which has been taken into
consideration by the High Court is the report of the
District Probation Officer, East Singhbhum, Jamshedpur
which was called for by the Court. By letter dated
10.04.2018, the District Officer, Jamshedpur has
submitted that report regarding well being of the child
Aditi. in paragraph No. 5 with regard to Educational
condition, following was opined:
"5. Educational condition: Now Aditi is in
Std.5 in Sacred Heart School in Jamshedpur.
Acceding to her School progress report card,
she is an average student but talking with
Aditi, this investigator founded that she is
an intelligent girl. In the better educational
atmosphere and without any type of stress or
tension she will do better for her future.”
10. The High Court in paragraph 21 ultimately said:
"21. Considered thus, in the totality of the
facts and circumstances, we are inclined to
accede to the request of the father to allow
the child to be admitted to a reputed school
i.e. Good Shepherd International School, Ooty
in ClassV which is affiliated to ICSE. The
session 201819 commences from 21.07.2018. In
that way, the girl would not lose any valuable
period of the session as it is yet to
commence. As informed by the father, aptitude
test and personal interview is to be held
before 10.05.2018. Good Shepherd International
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School, Ooty as its brochure shows was
established in 1977 and has the facilities of
best teaching and learning practices, services
and opportunities provided by a team of
committed mentors and facilitators. It has a
knowledge village, a reputed Finishing Schools
for girls along with 9hole golf course,
hospital, bank, vegetable farms, dairy and
poultry. It is spread over 150 acres of
verdant land in Nilgiris in Tamil Nadu, India.
Avowedly, it has a state of art infrastructure
for academic and boarding talent to deliver
world class education. There are houses for
the students from Class VI to XII. The
Institution is a Member of the Council of
International Schools, a benchmark of world
class school education. It has a distinguished
faculty who are exposed to global developments
and reside within the Global Village to devote
complete time to make the learning experience
for the students an enriching one.”
11. The order impugned indicates that the High Court
has not finally decided both the appeals filed against
the order dated 31.03.2016 of the Family Court. The
matter has been kept pending by the High Court. The
High Court had directed that after child is admitted in
the school the matter should again be posted before the
High Court to file compliance report.
12. As noted above, the application which was filed by
the respondent before the Family Court under the
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Guardian and Wards Act, 1890 was confined only to the
consideration of the issue as to whether child Aditi
should be directed to be admitted in a boarding school.
The respondent has given up his claim of custody of the
child and has only pressed his prayer of sending the
child to the boarding school.
13. It is also relevant to note that it is the
respondent, who is bearing all expenses of the child in
the boarding school at Ooty, which are more than Rs.10
lakhs p.a. In addition to the above expenses of the
school, the respondent also offered to bear expenses of
flight charges and stay of the appellant when she visit
the child at Ooty from Jamshedpur. From the material
on the record, we are satisfied that the respondent's
intention has always been that the child should get
best education at a neutral environment, which may help
in developing her personality. It is also to be
noticed that the appellant has right from beginning
opposing the prayer of the respondent to send the child
in the boarding school and tried to find fault with the
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school at Ooty. In the circumstance in which the child
is there, the Court has to take extra caution and
precaution to ensure that the child is kept away from
negative influences.
14. As noted above, even the Family Court has directed
for admitting the child in boarding school but from
Academic Session 20192020. The High Court initially
directed that the child to be admitted in Sacred Heart
Convent School, Jamshedpur and after receiving a report
from the said School, the High Court directed for
admission of Aditi in Good Shepherd International
School, Ooty for the Academic Session 20182019, which
order is under challenge in these appeals.
15. As noted above, we in our order dated 10.07.2018
declined to stay the directions of the High Court for
admission of Aditi in Good Shepherd International
School, Ooty in Class V. The order passed by the High
Court, impugned, in these appeals, has been given
effect to and both the appeals being still pending in
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the High Court awaiting final decision, we are of the
view that the High Court may finally decide the appeals
after hearing the parties. Order dated 26.04.2018
having been given effect to, we see no justification in
interfering with this order at this stage. Learned
counsel for the parties submitted that this Court may
itself decide all the issues finally but the appeals
against the order of the Family Court being awaiting
the final decision of the High Court. it is appropriate
that the High Court may be requested to decide the
appeals finally.
16. Before we close, few observations on the issues
which have arisen before us need to be made. The
present is a case, where limited issue has arisen
regarding giving education to the child in boarding
school or to permit the status quo regarding education
of the child as was on the date when the Family Court
passed order dated 31.03.2016. When the child has to
go in the environment, where there is marital discord
between her parents affecting the peace of mind of all
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including the parents and children, child suffers
physical and mental distress. The ill consequences of
the discord between mother and father effect the child
in her normal upbringing and is a negative factor on
child's personality and upbringing. This Court in Vivek
Singh vs. Romani Singh, (2017) 3 SCC 231, has discussed
the term “Parental Alienation Syndrome”. In paragraph
No.18 of the judgment, following was observed:
“18. ….......................Psychologists
term it as “The Parental Alienation
Syndrome”. It has at least two psychological
destructive effects:
(i) First, it puts the child squarely in the
middle of a contest of loyalty, a
contest which cannot possibly be won.
The child is asked to choose who is the
preferred parent. No matter whatever is
the choice, the child is very likely to
end up feeling painfully guilty and
confused. This is because in the
overwhelming majority of cases, what the
child wants and needs is to continue a
relationship with each parent, as
independent as possible from their own
conflicts.
(ii) Second, the child is required to make a
shift in assessing reality. One parent
is presented as being totally to blame
for all problems, and as someone who is
devoid of any positive characteristics.
Both of these assertions represent one
parent's distortions of reality.
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17. In the above case also there was bitter fight
between father and mother. The Family Court has allowed
the custody of the minor girl child to the father by
dismissing the petition of the respondentmother for
custody. The High Court on appeal decided the
entitlement of the custody of the child to the mother.
Aggrieved by the order of the High Court, father had
filed the appeal in which backgrounds the above
observations were made by this Court. The ill effect on
child, due to discord between the parents with negative
feeling against each other has natural effect, which
hinders the child's normal development.
18. It is well settled that while taking a decision
regarding custody or other issues pertaining to a
child, welfare of the child is of paramount
consideration. This Court in Gaurav Nagpal vs. Sumedha
Nagpal, (2009) 1 SCC 42, had occasion to consider the
parameters while determining the issues of child
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custody and visitation rights, entire law on the
subject was reviewed. This Court referred to English
Law, American Law, the statutory provisions of Guardian
and Wards Act, 1890 and provisions of Hindu Minority
and Guardianship Act, 1956, this Court laid down
following in paragraph Nos. 43, 44, 45, 46 and 51:
“ 43. 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.
44. 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
wellbeing as paramount consideration.
45. In Saraswathibai Shripad Ved v. Shripad
Vasanji Ved, ILR 1941 Bom 455 : AIR 1941 Bom
103; the High Court of Bombay stated;
“....It is 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 of the
minor alone which is the paramount
consideration.....”
(emphasis supplied)
46 . In Rosy Jacob v. Jacob A. Chakramakkal,
(1973) 1 SCC 840, this Court held that object
25
and purpose of the 1890 Act is not merely
physical custody of the minor but due
protection of the rights of ward’s 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.
51. 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. ”
19. Every child has right to proper health and
education and it is the primary duty of the parents to
ensure that child gets proper education. The Courts in
exercise of parens patriae jurisdiction have to decide
such delicate question. It has to consider the welfare
of the child as of paramount importance taking into
consideration other aspects of the matter including the
rights of parents also. In reference to custody of a
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minor, this Court had elaborated certain principles in
Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka,
(1982) 2 SCC 544, where this Court again reiterated
that welfare of the child is of paramount importance.
In paragraph No.17, following was laid down:
“ 17. The principles of law in relation to the
custody of a minor appear to be well
established. It is wellsettled that any
matter concerning a minor, has to be
considered and decided only from the point of
view of the welfare and interest of the minor.
In dealing with a matter concerning a minor,
the Court has a special responsibility and it
is the duty of the Court to consider the
welfare of the minor and to protect the
minor's interest. In considering the question
of custody of a minor, the Court has to be
guided by the only consideration of the
welfare of the minor.”
20. In the above case, the issue of minor girl came for
consideration in the context of custody. The mother,
who was school teacher wanted to send the child to
boarding school, which was opposed by the father, who
wanted to have custody of the minor girl. It is to be
noted that in the said case the minor girl has
expressed her wish not to go to boarding school. This
Court held that in embittered relationship between the
27
parents and the attempt of one spouse poisoning the
mind of the child against the other spouse has
disastrous effect. In paragraph Nos. 32 to 35 following
was laid down:
“ 32. The effect on the little girl of the
embittered relationship between her parents
and the attempt of the father to poison the
mind of the daughter against her mother and to
alienate her from the mother has been simply
disastrous. The intelligent and sensible girl,
distressed at the acrimony between her
parents, who wanted to spend her time with
each of her parents as she is deeply attached
to both, as recorded by Lentin, J. in his
order dated June 28, 1979, was on the verge of
near nervous breakdown as noted by the
Division Bench in its judgment dated July 31,
1981. The various orders passed in between
which we have set out at length also, indicate
what great mental strain and agony the little
girl had suffered because of the acrimonious
dispute between her parents. During this
period of two years, the girl had been under
home influence, as she had been staying with
her quarrelling parents in terms of the
various orders of the High Court. The little
girl also had been compelled to make her
appearances in Court from time to time. The
facts and circumstances clearly establish that
the effect of home influence on the minor in
the present case has been to reduce a bright,
happy and sensible child to a state of
complete misery; and, the extreme
psychological strain on the sensible mind of
the little girl has caused almost a near
nervous breakdown. When the atmosphere in a
house, vitiated and rendered surcharged with
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tension as a result of bitter squabbles
between husband and wife causes misery and
unhappiness to a child, who has to live in
constant psychological strain in such a broken
home in view of the bitter relationship
between her parents for each of whom she has
great affection, the healthy and normal growth
of the child is bound to be seriously
affected. In the interest and for the welfare
of the child in such a case, the child is
necessarily to be removed from such unhealthy
environment of a broken home surcharged with
tension. In such a case, the proper and best
way of serving the interest and welfare of the
child will be to remove the child from such
atmosphere of acrimony and tension and to put
the child in a place where the embittered
relationship between her parents does not
easily and constantly effect her tender mind.
33. In the facts and circumstances of the
present case the best way to serve the welfare
and interest of the child will be to remove
the child from the unhealthy atmosphere at
home which has caused a very great strain on
her nerves and has certainly affected her
healthy growth, to a place where she can live
a normal healthy life and will have a good
opportunity of proper education and healthy
growth. We note with satisfaction that the
view that we have taken is fully supported by
the report of the Social Welfare Expert. The
report of the Social Welfare Expert, though
not binding on the Court is entitled to
weighty consideration. In the instant case,
the Expert has made a very careful study of
the entire matter and has given a well
reasoned report.
34. Pursuant to the order passed by the
Division Bench of the Bombay High Court the
mother got the child admitted into Kimmins
29
Boarding School at Panchgani. By an interim
order passed by this Court in the stay
application in this appeal, the child was
directed to continue her stay in the said
Boarding institution. By the interim order
passed by us on the conclusion of the hearing
we directed that the child should continue
her study in the Boarding School.
35. On a consideration of all the facts and
circumstances of this case and bearing in
mind the paramount consideration of the
welfare of the child, we are of the opinion
that the child's interest and welfare will be
best served by removing her from the
influence of home life and by directing that
she should continue to remain in the Boarding
School. It is not in dispute that Kimmins
Boarding School at Panchgani to which the
child has been admitted is a good
institution.”
21. In the above case, the child was allowed to
continue in the boarding school. We notice one more
decision of this Court in Nutan Gautam vs. Prakash
Gautam, (2019) 4 SCC 734, which was a case where appeal
was filed by mother of a child against the order of the
High Court passed in First Appeal. While decreeing the
divorce petition of the husband ex parte the trial
court had directed the son, the minor boy, to be
admitted in a boarding school at New Delhi. Ex parte
30
order passed by the trial court was challenged by the
mother in the High Court, which matter was pending
before the High Court. The High Court by interim order
had permitted the father to take the boy to boarding
school. The said interim order was challenged in this
Court. This Court interacted with the boy and took the
view that in the facts of the case, the child should
not be compelled to go to boarding school. This Court
allowed the child to continue his studies at Global
International School, Shahjahanpur, where he was
earlier studying in the interest of the child. Every
case where issue pertaining to custody of child and
education is decided depends upon the facts of each
case. No hard and fixed formula can be found out which
can be applied to each and every case. Each case has to
be examined in its own facts. We may again refer to the
judgment in where also
Thrity Hoshie Dolikuka (supra),
this Court noticed that child has expressed his wishes
not to go to boarding school. This Court in the said
case took the view that the minor is not fit to form an
intelligent preference, which may be taken into
31
consideration in deciding her welfare. In paragraph
No.26, following was laid down:
“ 26. In the facts and circumstances of this
case we are however, not inclined to interview
the minor daughter, as we are satisfied in the
present case that the minor is not fit to form
an intelligent preference which may be taken
into consideration in deciding her welfare. We
have earlier set out in extenso the various
orders passed by the various learned Judges of
the Bombay High Court after interviewing the
minor and the learned Judges have recorded
their impressions in their judgments and
orders. The impressions as recorded by the
learned Judges of the Bombay High Court, go to
indicate that the minor has expressed
different kinds of wishes at different times
under different conditions. It also appears
from the report of the Social Welfare Expert
that these interviews cast a gloom on the
sensitive mind of the tender girl and caused a
lot of strain and depression on her. Torn
between her love for both her parents and the
acrimonious dispute between them resulting in
the minor being dragged from court to court,
we can well appreciate that the sensitive mind
of the minor girl is bound to be sadly
affected. Though the girl is quite bright and
intelligent as recorded by the learned Judges
of the Bombay High Court in their orders after
their interviews with the girl who is of a
tender age and is placed in a very delicate
and embarrasing situation because of the
unfortunate relationship and litigation
between her parents for both of whom she has
great deal of affection, she is not in a
position to express any intelligent preference
which will be conducive to her interest and
welfare. Mature thinking is indeed necessary
in such a situation to decide as to what will
32
enure to her benefit and welfare. Any child
who is placed in such an unfortunate position,
can hardly have the capacity to express an
intelligent preference which may require the
Court's consideration to decide what should be
the course to be adopted for the child's
welfare. The letters addressed by the daughter
to her mother from Panchgani and also a letter
addressed by her to her aunt (father's sister)
also go to show that the minor cannot
understand her own mind properly and cannot
form any firm desire. We feel that sending for
the minor and interviewing her in the present
case will not only not serve any useful
purpose but will have the effect of creating
further depression and demoralisation in her
mind.”
22. We, thus, are of the view that what is in the
interest of the child depends on the facts and
circumstances of each case and has to be decided on its
own merits without adhering to any fixed formula or
rule. The appeals being pending before the High Court,
we are of the view that while deciding the appeals
finally, High Court should also take into consideration
subsequent materials which may be brought before it by
the parties including the progress report of the child
from Good Shepherd International School, Ooty. Learned
counsel has also raised certain medical issues
pertaining to the child. It is also open for the High
33
Court to take decision on the said issues and if
necessary to obtain medical reports as may be required.
In so far as interacting with the child, the High Court
during hearing of the appeals had already interacted
with the child on many occasions and it is for the High
Court to take a decision with regard to interacting
with the child.
23. The reports received from Child Welfare Committee,
Jharkhand and Good Shepherd International School, Ooty
by this Court on 29.01.2019 and 02.02.2019 respectively
be remitted to the High Court for consideration in
sealed cover. After we closed the hearing on
01.07.2019, another report dated 08.07.2019 has been
received from Good Shepherd International School, Ooty
in sealed cover which has not been opened. Let all the
above reports in a sealed cover be transmitted to the
Jharkhand High Court by a special Messenger, to be
considered in the pending first appeals.
24. In view of the foregoing discussion, we do not find
34
any good ground to interfere with the impugned judgment
of the High Court. The High Court is requested to
decide First Appeal No.59 of 2016 and First Appeal
No.68 of 2016 after hearing the parties keeping in view
the observations as made above. The appeals are
disposed of accordingly.
..........................J.
( ASHOK BHUSHAN )
..........................J.
NEW DELHI, ( NAVIN SINHA )
JULY 11, 2019.