custody of foreign national child order in India

custody of foreign national child order in India

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.112/2007
Dr. V. Ravi Chandran ..Petitioner
Versus
Union of India & Ors. ..Respondents
JUDGMENT
R.M. LODHA, J.
Adithya is a boy of seven, born on July 1, 2002, in the
United States of America. He is a foreign national. The petition before
us is by the father – Dr. V . Ravi Chandran–praying for a writ of
habeas corpus for the production of his minor son Adithya and for
handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order
requesting Director, Central Bureau of Investigation (CBI) to trace
minor Adithya and produce him before this Court. The necessity of
such order arose as despite efforts made by the police officers and 
officials of different states, Adithya and his mother – respondent
no. 6–Vijayasree Voora–could not be traced and their whereabouts
could not be found for more than two years since the notice was
issued by this Court. In pursuance of the order dated August 28,
2009, CBI issued look out notices on all India basis through heads of
police of States, Union Territories and Metropolitan Cities and also
alert notices through Deputy Director, Bureau of Immigration
(Immigration), Ministry of Home Affairs, New Delhi and flashed
photographs of the child Adithya and his mother Vijayasree Voora.
Ultimately with its earnest efforts, CBI traced Adithya and his mother
Vijayashree Voora in Chennai on October 24, 2009 and brought them
to Delhi and produced the child along with his mother at the
residential office of one of us (Tarun Chatterjee, J.) on October 25,
2009. On that day, the CBI authorities were directed to keep the child
under their custody and produce him before the Court on October 27,
2009. Respondent no. 6 was also directed to be produced on that
date. On October 27, 2009, the matter was adjourned for November
4, 2009 since respondent no.6 wanted to engage a lawyer and file a
counter affidavit. On November 4, 2009, matter was adjourned to
November 10, 2009 and then to November 12, 2009. The petitioner
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was permitted to meet the child for one hour on November 10, 2009
and November 12, 2009. In the meanwhile, respondent no. 6 has
filed counter affidavit in opposition to the habeas corpus petition and
petitioner has filed rejoinder affidavit to the counter affidavit filed by
respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for
the petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent no. 6. Now since minor Adithya has been produced, the
only question that remains to be considered is with regard to the
prayer made by the petitioner for handing over the custody of minor
Adithya to him with his passport.
4. But before we do that, it is necessary to notice few
material facts. Dr. V. Ravi Chandran – petitioner – is an American
citizen. He and respondent no. 6 got married on December 14, 2000
at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,
2002, Adithya was born in United States of America. In the month of
July 2003, respondent no. 6 approached the New York State
Supreme Court for divorce and dissolution of marriage. A consent
order governing the issues of custody and guardianship of minor
3

Adithya was passed by the New York State Supreme Court on April
18, 2005. The Court granted joint custody of the child to the
petitioner and respondent no. 6 and it was stipulated in the order to
keep the other party informed about the whereabouts of the child.
On July 28, 2005, a Separation Agreement was entered between the
petitioner and respondent no.6 for distribution of marital property,
spouse maintenance and child support. As regards custody of the
minor son Adithya and parenting time, the petitioner and respondent
no. 6 consented to the order dated April 18, 2005. On September 8,
2005, the marriage between the petitioner and respondent no.6 was
dissolved by the New York State Supreme Court. Child custody order
dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the
petitioner and the petition for enforcement filed by him and upon the
petition for enforcement filed by respondent no.6 before the Family
Court of the State of New York, on June 18, 2007, upon the consent
of both parties, inter – alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further
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 ORDERED, that commencing during August 2007,
Adithya shall reside in Allen, Texas; and it is further
ORDERED, that the parties acknowledge that it is the intention of the parties to reside within the same community. As such, it is the mother’s current intention to relocate to Texas, within a forty (40) mile radius of the father’s residence. If the mother does relocate to a forty (40) mile radius of the father’s residence (which shall be within a twenty (20) mile radius from the child’s school),, the parties shall equally share physical custody of Adithya. The parties shall alternate physical custody on a weekly basis, with the exchange being on Friday, at the end of the School day, or at the time when school would ordinarily let out in the event that there is no school on Friday; ……………. …………………………………………………………… ……………………………………………………………
ORDERED, that in the event that the mother does not relocate within forty (40) miles from the father’s residence located in Allen, Texas (and within twenty (20) miles of Adithya’s school), the mother shall have custodial time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the school day until Monday, prior to the beginning of school, commencing during the first week of September, 2007. Such periods of custodial time shall take place within forty (40) miles from the father’s residence located in Allen, Texas. In the event that there is no school on the Friday of the mother’s weekend, she shall have custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in the event that there is no school on Monday of the mother’s custodial weekend, she shall have custodial time until 5.00 p.m. on Monday, and
B. For ten (10) consecutive days during Spring vacation from school; and
C. For the entirety of the Christmas recess from School, except for Christmas Eve and Christmas day, which shall be with the father. In the event that the school recess is prior to Christmas Eve, the mother shall have the right to have custodial time during those recessed
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 days to long as she produces the child at the father’s residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother’s birthday, which is on April 25;
ii) Mother’s Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya’s birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the mother has custodial time during even -
numbered years and the father has custodial
time during odd – numbered years);
vi) New Year’s Day in alternating years (so that the mother has custodial time during even -
numbered years and the father has custodial
time during odd -numbered years) ;………… ……………..
…………………………………………………… ORDERED, that the parties shall share the
summer recess from school so that the mother has custodial time for a total of up to fifty (50) days on a schedule so that each party has custodial time for 4 consecutive weeks, with the mother’s custodial time commencing on the Monday following the final day of school……….
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until June 20; the father shall have custodial time from June 20 until June 24; the mother shall have custodial time from June 25 until July 1; the father shall have custodial time from July 1 until July 6; and the mother shall then have custodial time from July 6 until August 3 and she shall be solely responsible for transporting the child to the father’s residence in Allen, Texas on August 3. The father shall have custodial time until the commencement of school. Thereafter the father shall continue to have custodial time until such time as the mother either a) returns from India and/or begins her alternating weekly
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 schedule as set froth herein, or b) moves within 40 miles of the father’s residence in Allen, Texas and commences her custodial time during alternating weeks;………………………………
……………………………………………………. …………………………………………………….
ORDERED, that each party agrees that they
shall provide the other parent with a phone number and address where the child will be located at all time, and that the other parent shall have reasonable and regular telephone communication with the minor child; and it is further
ORDERED, that each party agrees to provide
the other party with the child’s passport during each custodial exchange of the minor child, and that each party shall sign and deliver to the other, whatever written authorization may be necessary for travel with the child within the Continental United States or abroad;"……………………………………….
6. On June 28, 2007 respondent no.6 brought minor Adithya
to India informing the petitioner that she would be residing with her
parents in Chennai. On August 08, 2007, the petitioner filed the
petition for modification (Custody) and Violation Petition (Custody)
before the Family Court of the State of New York on which a show
cause notice came to be issued to respondent no.6. On that very
day, the petitioner was granted temporary sole legal and physical
custody of Adithya and respondent no. 6 was directed to immediately
turn over the minor child and his passport to the petitioner and further
her custodial time with the minor child was suspended and it was
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ordered that the issue of custody of Adithya shall be heard in the
jurisdiction of the United States Courts, specifically, the Albany
County Family Court.
7. It transpires that the Family Court of the State of New
York has issued child abuse non-bailable warrants against
respondent no.6.
8. In the backdrop of the aforenoticed facts, we have to
consider–now since the child has been produced–what should be
the appropriate order in the facts and circumstances keeping in mind
the interest of the child and the orders of the courts of the country of
which the child is a national.
9. In re B–’s Settlement,1 Chancery Division was concerned
with an application for custody by the father of an infant who had
been made a ward of court. The father was a Belgian national and
the mother a British national who took Belgian nationality on marriage
to him. The infant was born in Belgium. The mother was granted a
divorce by a judgment of the Court in Belgium, but the judgment was
reversed and the father became entitled to custody by the common
1
{1940} Ch. 54
8

law of Belgium. The mother, who had gone to live in England, visited
Belgium and was by arrangement given the custody of the infant for
some days. She took him to England and did not return him. The
infant had been living with mother in England for nearly two years.
The father began divorce proceedings in Belgium, and the Court
appointed him guardian. Pending the proceedings, the Court gave
him the custody and ordered the mother to return the infant within
twenty-four hours of service of the order on her. She did not return
the infant. The Correctional Court in Brussels fined her for
disobedience and sentenced her to imprisonment should the fine be
not paid. The Correctional Court also confirmed the custody order.
In the backdrop of these facts, the summons taken out by the father
that custody of the infant be given to him came up before Morton, J.
who after hearing the parties and in view of the provisions of the
Guardianship of Infants Act, 1925 observed thus:
"…At the moment my feeling is very strong that, even assuming in the father’s favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being…………………………
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 In the present case the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interests of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on October 5, 1937. I think the present case differs from Nugent v. Vetzera {FN10}, the case that was before Page Wood V.-C., and it is to be observed that even in that case, and in the special circumstances of that case, the Vice-Chancellor guarded himself against anything like abdication of the control of this Court over its wards. It does not appear what the Vice-Chancellor’s view would have been if there had been evidence, for example, that it would be most detrimental to the health and well-being of the children if they were removed from England and sent to Austria…………………………………………..
……..I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country."……………… ……………… ………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council
was concerned with an appeal from the Supreme Court of Canada.
That was a case where the parents of the infant were American
2
{1951} A.C. 352
10

citizens. They were married in America and to whom a son was born
in California in July 1940. They separated in December 1940 and on
September 4, 1941, executed an agreement which provided,
inter- alia, that neither of them should remove the child out of the
United States without the written permission of the other. By a
judgment of December 17, 1942, in divorce proceedings before the
Superior Court of the State of California, the custody of the child was
awarded to the father. On August 1, 1945, following applications by
the father and the mother, the previous order as to custody was
modified to provide full custody of the child to the mother with right of
reasonable visitation to the father. Thereafter, and without the
consent or knowledge of the mother, the father went from the
United States of America with the child into the Province of Ontario.
The mother thereupon instituted habeas corpus proceedings in the
Supreme Court of Ontario seeking to have the child delivered to her.
Wells, J., before whom the matter came held that infant’s best
interests would be served in the custody of his father. The Court of
Appeal for Ontario dismissed the appeal preferred by the mother.
However, the Supreme Court of Canada by majority judgment
allowed the appeal of the mother and set aside the order of custody
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of child to the father. On appeal from the Supreme Court of Canada
at the instance of the father, the Privy Council held as follows:
"……….For, after reaffirming "the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant", he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the court, whose jurisdiction he himself invoked, becomes "entitled as of right to have the whole question retried in our courts and to have them reach a anew and independent judgment as to what is best for the infant". and it is, in effect, because he held that the father had no such right that the judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But with great respect to the judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant’s welfare is the paramount consideration, to say that where the trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be
12

 so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant.
It cannot be ignored that such consequences might follow as are suggested by Cartwright, J. The disappointed parent might meet stratagem by stratagem and, taking the child into the Province of Manitoba, invoke the protection of its courts, whose duty it would then be to determine the question of custody. That is a consideration which, with others, must be weighed by the trial judge. It is not, perhaps, a consideration which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a foreign judgment must depend on the circumstances of each case. In the present case there was ample reason for the trial judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent inquiry and, in the second place, coming to a different conclusion as to what was for the infant’s benefit."……………………………..
11. The aforesaid two cases came up for consideration in
Harben vs. Harben3, wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure that a parent should not gain advantage by the use of fraud or force in relation to the kidnapping of children from the care of the other spouse, save perhaps where there is some quite overwhelming reason in the children’s interest why the status quo should not be restored by the court before deciding further issues. In the present case I am concerned with three young children, two of whom are girls and the youngest is aged only three. It is a particularly wicked thing to snatch such children from the care of a mother, and, in saying that, I have in mind not merely the mother’s position but the harm that can be done 3
{1957} 1. W.L.R. 261
13

 to the children. No affidavit of the husband tendering either his regrets or any vestige of excuse for his action has been proffered. Further, as I have already mentioned, when first I asked Mr. Syms what was the nature of the case which he might wish to make, if so minded, for depriving these children of a mother’s care, he only spoke of her association with a certain man and never suggested that she had in any way whatsoever failed to look after the children properly."
12. In Kernot vs. Kernot4 , the facts were thus: In May 1961,
the plaintiff mother, an Italian lady, married an English man in Italy
where both were residents. A boy was born there on March 29, 1962.
On October 19, 1963, they obtained in Italian Court a separation
order by consent providing therein that custody of the child would
remain with father, with rights of access to the mother . On October
29, 1963, the father brought the infant to England with intention to
make England his home. The mother commenced wardship
proceedings in which she brought a motion for an order that the
father return the infant to her in Italy. She also prayed for restraint
order against him from taking the infant out of her care. Buckley, J. in
these facts held thus:
"So that even where a foreign court has made an order on the merits – which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian court – that domestic court before whom the matter comes (the Ontario 4
{1965} Ch.217
14

 court in the case to which I have just referred, or this court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this court be to entertain the case where the foreign court has not made any order based on any investigation of the case on its merits."
13. In re H. (Infants)5, the Court of Appeal was concerned
with two American boys whose divorced parents were both citizens
of United States of America. On December 11, 1964, the Supreme
Court of New York State made a consent order directing that the
two boys whose custody had been given to the mother should be
maintained in her apartment in New York and not be removed from
a 50 miles’ radius of Peekskill without the prior written consent of
the father. However, the mother in March 1965 brought these boys
to England and bought a house for herself and children in June
1965. On June 15, 1965, the New York Court ordered the children
to be returned to New York. The mother started wardship
proceedings in the English court. The father took out motion asking
the mother that the two children should be delivered into his care,
that he should be at liberty to convey them to New York and that the
wardship of the children should be discharged. The Trial Judge held 5
(1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886
15

that the justice of the case required the children to be returned
without delay to the jurisdiction of the New York court, so that the
question of where and with whom they should live might be decided
as soon as possible by that court. The mother appealed to the Court
of Appeal. Willmer L.J. and Harman L.J. by their separate judgments
affirmed the view of the Trial Judge and held that the proper order
was to send these two boys back to their State of New York, where
they belong (and where the Supreme Court is already seized of their
case), and more especially so having regard to the fact that they
have been kept in flagrant contempt of New York Court’s order.
Willmer L.J. agreed with the remark of Cross J. where he said:
"The sudden and unauthorized removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view) that in a case such as the present it was not necessary to go into all the disputed questions between the parents, but that he ought to send these boys back to their own country to be dealt with by the court of their own country, provided that he was satisfied (as he was satisfied, having seen the father himself, and having had the benefit of the view expressed on behalf of the Official Solicitor) that they would come to no harm if the father took them back to the United States; and that this was so, even though it might
16

 subsequently turn out, after all the merits of the case had been thoroughly thrashed out in the court in New York, that it would perhaps be better after all for the boys to reside in England and see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
"…….But if he chose to take the course which the judge here took in the interests of the children , as he thought, of sending them back to the United States with no more inquiry into the matter than to ensure, so far as he could, that there was no danger to their moral or physical health in taking that course, I am of opinion that he was amply justified, and that that was the right way in which to approach the issue.
These children had been the subject of an order (it is true made by consent) made in the courts of their own country in December, 1964. It was only three months later that the mother flouted that order, deceived her own advisers and deceived the court , and brought the children here with the object of taking them right out of their father’s life and depriving him altogether of their society. The interval is so short that it seems to me that the court inevitably was bound to view the matter through those spectacles; that is to say, that the order having been made so shortly before, and there being no difference in the circumstances in the three months which had elapsed , there was no justification for the course which the mother had taken, and that she was not entitled to seek to bolster her own wrong by seeking the assistance of this court in perpetuating that position, and seeking to change the situation to the father’s disadvantage."
14. In re. L (minors)6, the Court of Appeal was
concerned with the custody of the foreign children who were
removed from foreign jurisdiction by one parent. That was a
case where a German national domiciled and resident in
Germany married an English woman. Their matrimonial home 6
(1974) 1 All ER 913
17

was Germany and the two children were born out of the
wedlock and brought up in Germany. The lady became
unhappy in her married life and in August, 1972, she brought
her children to England with an intention of permanently
establishing herself and the children in England. She obtained
residential employment in the school in England and the
children were accommodated at the school. The children not
having returned to Germany, the father came to England to find
them. On October 25, 1972, the mother issued an originating
summons making them wards of court. The trial judge found
that the children should be brought up by their mother and
treating the case as a `kidnapping’ class of case, approached
the matter by observing that in such a case where the children
were foreign children, who had moved in a foreign home, their
life should continue in what were their natural surroundings,
unless it appeared to the court that it would be harmful to the
children if they were returned. He concluded that in view of the
arrangements which their father could make for them, the
children would not be harmed by being returned. He,
accordingly, ordered that they be returned to Germany and that
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they remain in their father’s custody until further order. The
mother appealed, contending that in every case the welfare of
the child was the first and paramount consideration and that the
welfare of the children would be best served by staying with
their mother in England. Buckley, LJ in his detailed
consideration of the matter, wherein he referred to the
aforenoticed decisions and few other decisions as well, held as
follows :
"…….Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the `kidnapper’ the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
…………………………………………………………………… ………..The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily
19

 resolved in the courts of that country may well be regarded as being in the best interests of the child……"
15. In re. L. (minors)6, the Court of Appeal has made a
distinction between cases, where the court considers the facts and
fully investigates the merits of a dispute, in a wardship matter in
which the welfare of the child concerned is not the only consideration
but is the first and paramount consideration, and cases where the
court do not embark on a full-scale investigation of the facts and
make a summary order for the return of a child to a foreign country
without investigating the merits. In this regard, Buckley, L.J. noticed
what was indicated by the Privy Council in McKee v. McKee2 that
there may be cases in which it is proper for a court in one jurisdiction
to make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute relating to
the care of the child on the ground that such an order is in the best
interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu and Another7 was concerned with the custody of a child–
British citizen by birth–to the parents of Indian citizens, who after
7
(1984) 3 SCC 698
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their marriage settled in England. The child was removed by the
husband from the house when the wife was in the factory where she
was working and brought him to India. The wife obtained an order
under Section 41(English) Supreme Court Act, 1981 whereby the
husband was directed to handover the custody of the boy to her. The
said order was later on confirmed by the High Court in England. The
wife then came to India and filed a writ petition under Article 226 in
the High Court praying for production and custody of the child. The
High Court dismissed her writ petition against which the wife
appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)
speaking for the Court held thus :
"The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were
21

 incurred therein by the spouses. (See International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another8, this Court held that it was the duty of courts in all countries
to see that a parent doing wrong by removing children out of the
country does not gain any advantage by his or her wrongdoing. In
para 9 of the report, this Court considered the decision of the Court of
Appeal in re H.5 and approved the same in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural- born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the 8
(1987) 1 SCC 42
22

 American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para could not be traced.)]:
"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this."
18. In the case of Dhanwanti Joshi v. Madhav Unde9, this
Court was again concerned with the matter relating to removal of a
child from one country to another contrary to custody order of the
court from where the child was removed. This court considered
English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5
and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8
and observed as follows :
9
(1998) 1 SCC 112
23
 "28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was
24

removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child’s welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, — for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother’s
25

 application in India were within six months. In that context, this Court referred to H. (infants), Re which case, as pointed out by us above has been explained in L. Re as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C and the distinction between summary and elaborate inquiries as stated in L. (infants), Re are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata."
However, in view of the fact that the child had lived with his
mother in India for nearly twelve years, this Court held that it would
not exercise a summary jurisdiction to return the child to United
States of America on the ground that its removal from USA in 1984
was contrary to orders of U.S. Courts. It was also held that whenever
a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights
of the parties but on the sole and predominant criterion of what would
best serve the interest of the minor.
19. In the case of Sarita Sharma v. Sushil Sharma10, this
Court was seized with a matter where the mother had removed the
children from U.S.A. despite the order of the American Court. It was
held :
10
(2000) 3 SCC 14
26
 "6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have American citizenship and there is a possibility that in U.S.A they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them, one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights."
27

20. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention to the orders
of the court where the parties had set up their matrimonial home, the
court in the country to which child has been removed must first
consider the question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the matter
summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child’s
welfare be investigated in a court in his own country. Should the court
take a view that an elaborate enquiry is necessary, obviously the
court is bound to consider the welfare and happiness of the child as
the paramount consideration and go into all relevant aspects of
welfare of child including stability and security, loving and
understanding care and guidance and full development of the child’s
character, personality and talents. While doing so, the order of a
foreign court as to his custody may be given due weight; the weight
and persuasive effect of a foreign judgment must depend on the
circumstances of each case. However, in a case where the court
decides to exercise its jurisdiction summarily to return the child to his
own country, keeping in view the jurisdiction of the Court in the native
28

country which has the closest concern and the most intimate contact
with the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in
his own native country as that could be in the best interest of the
child. The indication given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one jurisdiction to make an
order directing that a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care of the child
on the ground that such an order is in the best interest of the child
has been explained in re. L (minors)6 and the said view has been
approved by this Court in Dhanwanti Joshi9. Similar view taken by the
Court of Appeal in re. H5 has been approved by this Court in
Elizabeth Dinshaw8.
21. Do the facts and circumstances of the present case
warrant an elaborate enquiry into the question of custody of minor
Adithya and should the parties be relegated to the said procedure
before appropriate forum in this country in this regard? In our
judgment, this is not required. Admittedly, Adithya is an American
citizen, born and brought up in United States of America. He has
spent his initial years there. The natural habitat of Adithya is in United
29

States of America. As a matter of fact, keeping in view the welfare
and happiness of the child and in his best interest, the parties have
obtained series of consent orders concerning his custody/parenting
rights, maintenance etc. from the competent courts of jurisdiction in
America. Initially, on April 18, 2005, a consent order governing the
issues of custody and guardianship of minor Adithya was passed by
the New York State Supreme Court whereunder the court granted
joint custody of the child to the petitioner and respondent no. 6 and it
was stipulated in the order to keep the other party informed about the
whereabouts of the child. In a separation agreement entered into
between the parties on July 28, 2005, the consent order dated April
18, 2005 regarding custody of minor son Adithya continued. In
September 8, 2005 order whereby the marriage between the
petitioner and respondent no. 6 was dissolved by the New York State
Supreme Court, again the child custody order dated April 18, 2005
was incorporated. Then the petitioner and respondent no. 6 agreed
for modification of the custody order and, accordingly, the Family
Court of the State of New York on June 18, 2007 ordered that the
parties shall share joint legal and physical custody of the minor
Adithya and, in this regard, a comprehensive arrangement in respect
30

of the custody of the child has been made. The fact that all orders
concerning the custody of the minor child Adithya have been passed
by American courts by consent of the parties shows that the
objections raised by respondent no. 6 in counter affidavit about
deprivation of basic rights of the child by the petitioner in the past;
failure of petitioner to give medication to the child; denial of education
to the minor child; deprivation of stable environment to the minor
child; and child abuse are hollow and without any substance. The
objection raised by the respondent no. 6 in the counter affidavit that
the American courts which passed the order/decree had no
jurisdiction and being inconsistent to Indian laws cannot be executed
in India also prima facie does not seem to have any merit since
despite the fact that the respondent no. 6 has been staying in India
for more than two years, she has not pursued any legal proceeding
for the sole custody of the minor Adithya or for declaration that the
orders passed by the American courts concerning the custody of
minor child Adithya are null and void and without jurisdiction. Rather
it transpires from the counter affidavit that initially respondent no. 6
initiated the proceedings under Guardianship and Wards Act but later
on withdrew the same. The facts and circumstances noticed above
31

leave no manner of doubt that merely because the child has been
brought to India by respondent no. 6, the custody issue concerning
minor child Adithya does not deserve to be gone into by the courts in
India and it would be in accord with principles of comity as well as on
facts to return the child back to the United States of America from
where he has been removed and enable the parties to establish the
case before the courts in the native State of the child, i.e. United
States of America for modification of the existing custody orders.
There is nothing on record which may even remotely suggest that it
would be harmful for the child to be returned to his native country.
22. It is true that child Adithya has been in India for almost
two years since he was removed by the mother–respondent no. 6
–contrary to the custody orders of the U.S. court passed by consent
of the parties. It is also true that one of the factors to be kept in mind
in exercise of summary jurisdiction in the interest of child is that
application for custody/return of the child is made promptly and
quickly after the child has been removed. This is so because any
delay may result in child developing roots in the country to which he
has been removed. From the counter affidavit that has been filed by
respondent no. 6, it is apparent that in last two years child Adithya did
32

not have education at one place. He has moved from one school to
another. He was admitted in school at Dehradun by respondent no. 6
but then removed within few months. In the month of June, 2009, the
child has been admitted in some school at Chennai. As a matter of
fact, the minor child Adithya and respondent no. 6 could not be traced
and their whereabouts could not be found for more than two years
since the notice was issued by this Court. The respondent no. 6 and
the child has been moving from one State to another. The parents of
respondent no. 6 have filed an affidavit before this Court denying any
knowledge or awareness of the whereabouts of respondent no. 6 and
minor child Adithya ever since they left in September, 2007. In these
circumstances, there has been no occasion for the child developing
roots in this country. Moreover, the present habeas corpus petition
has been filed by the petitioner promptly and without any delay, but
since the respondent no. 6 has been moving from one State to
another and her whereabouts were not known, the notice could not
be served and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would be
33

in the best interest of the child and also such order is justified in view
of the assurances given by the petitioner that he would bear all the
traveling expenses and make living arrangements for respondent no.
6 in the United Sates of America till the necessary orders are passed
by the competent court; that the petitioner would comply with the
custody/parenting rights as per consent order dated June 18, 2007 till
such time as the competent court in United States of America takes a
further decision; that the petitioner will request that the warrants
against respondent no. 6 be dropped; that the petitioner will not file or
pursue any criminal charges for violation by respondent no. 6 of the
consent order in the United States of America and that if any
application is filed by respondent no. 6 in the competent court in
United States of America, the petitioner shall cooperate in expeditious
hearing of such application. The petitioner has also stated that he has
obtained confirmation from Martha Hunt Elementary School, Murphy,
Texas, 75094, that minor son Adithya will be admitted to school
forthwith.
24. The learned Senior Counsel for respondent no. 6 sought
to raise an objection regarding the maintainability of habeas corpus
petition under Article 32 of the Constitution before this Court but we
34

are not persuaded to accept the same. Suffice it to say that in the
peculiar facts and circumstances of the case which have already
been noticed above and the order that we intend to pass, invocation
of jurisdiction of this Court under Article 32 cannot be said to be
inappropriate.
25. We record our appreciation for the work done by the
concerned officers/officials of CBI in tracing the minor child Adithya
and producing him in less than two months of the order passed by
this Court, although, the Police Officers and Officials of different
States failed in tracing the child Adithya and respondent no. 6 for
more than two years. But for the earnest efforts on the part of the CBI
authorities, it would not have been possible for this Court to hear and
decide this habeas corpus petition involving the sensitive issue
concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the
following order :
(i) The respondent no. 6 shall act as per the consent
order dated June 18, 2007 passed by the Family Court of the
State of New York till such time any further order is passed on
35

the petition that may be moved by the parties henceforth and,
accordingly, she will take the child Adithya of her own to the
United States of America within fifteen days from today and
report to that court.
(ii) The petitioner shall bear all the traveling expenses
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of America till further orders are passed by the
competent court.
(iii) The petitioner shall request the authorities that the
warrants against respondent no. 6 be dropped. He shall not file
or pursue any criminal charges for violation by respondent no. 6
of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and
contact number in India to the CBI authorities and also inform
them in advance the date and flight details of her departure
along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of America within fifteen
days from today, child Adithya with his passport shall be
36

 restored to the custody of the petitioner to be taken to United
States of America. The child will be a ward of the concerned
court that passed the consent order dated June 18, 2007. It will
be open to respondent no. 6 to move that court for a review of
the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
………………
……J (Tarun Chatterjee)
……………….
…..J
(R. M. Lodha)
……………………J
(Dr. B.S. Chauhan)
New Delhi
November 17, 2009

interim order of child custody

interim custody of child

“In this view of the matter, the trial Court has clearly acted in improper exercise of its jurisdiction in granting interim custody of the minor child to the respondent for a period of 10 days from 15th May, 1998 to 25th May, 1998 and, therefore, the same cannot be sustained and is liable to be set aside”
Smt. Naseema Shaikh vs Shri Jainuddin M. Shaikh on 22 May, 1998
Equivalent citations: 1998 (4) BomCR 225
Author: R Khandeparkar
Bench: R Khandeparkar
ORDER
R.M.S. Khandeparkar, J.
1. Admit. Heard forthwith by consent.
2. This is a revision application against the Order dated 14th May, 1998 passed in Special Civil Suit No. 55/96/B by the Additional Civil Judge, Senior Division at Vasco-da-Gama. By the impugned order, the trial Court had directed that during the first half of the summer vacation with effect from 15th May, 1998 to 25th May, 1998 the interim custody of the minor child of the parties by name Saniya, be given to the respondent herein.
3. The facts in brief relevant for the decision are that the petitioner and the respondent were married on 10th May 1985 and out ot the said wedlock the said child by name Saniya was born on 14th December 1987. The petitioner and the respondent lived together till November 1993 and since December 1993 the petitioner herein started residing at her parental house alongwith her daughter Saniya. Sometime in July 1996 the respondent herein filed Special Civil Suit No. 55/96/B in the trial Court praying for custody of the minor child Saniya. Pending the hearing and disposal of the suit, the respondent herein also prayed for interim custody of the child. It was the case of the respondent that the petitioner had been leading an adulterous and characterless life and the same may affect their daughter Saniya if she is allowed to continue to reside with the petitioner. It was the further case of the respondent that the child was being brought up by the petitioner in an unhealthy atmosphere and further that the child was being deprived of motherly love and affection and, therefore, the respondent wanted to bring up the child in a healthier manner and for that reason the interim custody of the child was required to be given to him.
4. The claim of the respondent was disputed by the petitioner and it was contended by her that the respondent was an alcoholic person and used to ill-treat her and that therefore she had to leave her matrimonial house. She further denied that the child was being brought up in an unhealthy atmosphere and that no motherly love and affection was given to the child.
5. The trial Court after hearing the parties by its order dated 15th February 1997 dismissed the interim application for custody filed by the respondent. The trial Court however, observed that the respondent being the father of the minor child was equally entitled to spend time with his minor daughter and to bestow his love and affection on her and, therefore, it was just and proper to allow the respondent to meet the child Saniya in the school premises during the recess time of 1st and 4th Saturdays of every month.
6. It appears that prior to the Diwali vacation of the year 1997 an attempt was made by the respondent to file an application for interim custody of the minor child during the period of half of the Diwali Vacation. However, the same application was rendered infructuous being not disposed of in time. Thereafter, on 21st March 1998 the respondent herein filed another application seeking the relief of interim custody of the minor child Saniya for half of the period of summer vacation in the year 1998. The trial Court after hearing the parties by the impugned order allowed the said application directing interim custody of the minor child Saniya to be given to the respondent during the period from 15th May 1998 to 25th May 1998. It is this order that is being impugned in the present revision application.
7. Shri S.S. Kantak, learned Advocate appearing for the petitioner, while assailing the impugned order, submitted that the trial Court ought to have considered that the application under consideration was barred by the principles of res judicata in as much as the trial Court had, by its Order dated 15th February, 1997, already rejected the relief of interim custody ot the minor child to the respondent and, therefore, the trial Court should not have entertained a fresh application for similar type of relief. In that regard he placed reliance upon the judgment of the Apex Court in the matter of Arjun Singh v. Mohindra Kumar and others, . He
further submitted that the respondent did not disclose any change in the circumstances to warrant any alteration or modification in the Order dated 15th February 1997 as regards the interim custody of the minor child Saniya. He further submitted that the fact that there is de facto separation between the petitioner and the respondent since December 1993 is not in dispute. Nevertheless there was no attempt by the respondent to seek the custody of the minor child for a period of 3 years and the application for custody was filed only in July 1996. An attempt in the said suit to obtain interim custody on the part of the respondent had failed when the Order dated 15th February 1997 was passed and yet the respondent did not react against the same by filing any appeal. In these circumstances, according to the learned Advocate, there was no justification for any modification in the said Order on the basis of the application filed by the respondent on 21st March 1998. According to the learned advocate, the facts on record do not in any manner justify the custody of the minor child with the respondent even for a period of 10 years.
8. As against this Shri S.M. Makandar, the learned Advocate appearing for the respondent, submitted that the earlier application which was disposed of by Order dated 15th February 1997 was on the basis of certain facts disclosed in the application which was the subject matter of the Order whereas the impugned Order is based on different set of facts disclosed in the application dated 21st March 1998 and in that view the principle of res judicata will have no application to the matter in hand. According to the learned advocate, the fact regarding the summer vacation was not at all an issue between the parties while the matter was being dealt with by the trial Court and disposed of by Order dated 15th February 1997 whereas that was the sole issue for consideration while disposing the application under consideration by the impugned Order. He further submitted that this Court in the matter of Agnelo Rasquinha v. Maria Cynthia Luiza de Piedae Colaco Rasquinha, reported in 1989 (1) G.L.T. 28 has already held that though the courts are at liberty to interview children, the Court is not bound to follow the wishes of the children if it is found that the children are immature and incapable of forming their opinion. Placing reliance upon the said judgment of this Court, the learned Advocate submitted that undisputedly the child Saniya is hardly 10 years old and cannot be considered to be capable to form her own opinion regarding her own welfare and well being. He further submitted that the father is always the natural guardian of minor children. Being so, and placing reliance upon the judgment of the Delhi High Court in the matter of Dr. Mrs. Manglesh Aneja v. State and another, reported in 1988(24) Reports Del. 345 submitted that the welfare of the minor child should be of paramount consideration for the Court while deciding the issue of custody of the minor child and for that purpose all the relevant facts having bearing on the health, maintenance and education of the minor should be taken into consideration by the Court. Taking this into consideration, according to the learned Advocate, no fault can be found with the impugned order and it cannot be said that any illegality has been committed by the trial Court in ordering the interim custody of the minor child Saniya for 10 days to the respondent. He further submitted that it is in the interest of the child that the child should also be bestowed with fatherly love alongwith motherly love and in that view of the matter no interference is called for by this Court in its revisional jurisdiction.
9. Upon hearing the advocates for the parties and on perusal of the records, it is seen that the trial Court by the impugned order has allowed the application of the respondent for interim custody for 10 days during the summer vacation merely on the ground that the question of summer vacation raised in the application under consideration was not before the trial Court while deciding the matter on 15th February 1997 and secondly on the ground that the predecessor Judge of the trial Court had found that the father of the minor child Saniya, being a natural guardian, could not be deprived to spend some time with his own daughter and to bestow his love and affection on her. The relevant portion of the Order reads thus :-
“Perusal of the application in the said Civil Miscellaneous Application No. 128/ 96 and the affidavit filed in support of it shows that the question of summer vacation was not raised in the said application nor the same was considered in the said order. The petitioner being the father of the minor-child-Saniya is a natural guardian of the said child, he cannot be deprived to spend some time with his own daughter and to bestow his love and affection on her. The application of the petitioner, therefore, deserves to be allowed to the following effects.”
Before arriving at the said finding the trial Court has also quoted a paragraph from the order dated 15th February 1997 in order to justify the said findings. Moreover, it appears that the trial Court completely overlooked that the paragraph quoted from the order dated 15th February 1997 was preceded by two other relevant paragraphs which read thus :-
” 10. It is also pertinent to note that the respondent is living with her parents, sisters and brothers. Thus, it is evident that even in the absence of the respondent there are elderly family members in the house who can look after the child. The applicant is admittedly working and there is nothing on record to prove that he has any family member specially grown up female family member who is genuinely interested in the welfare of the child and who can guide and give motherly advice to the child Saniya.
11. In my opinion, the differences, discord and bitterness between the parents should not affect the healthy normal growth of the child the least that the child deserves and expects from their parents.”
It is only after arriving at these findings that the trial Court in its Order dated 15th February 1997 had observed that considering all these facts and without going into the merits of the allegations made by either parties, there were no compelling circum stances warranting interference of the Court to grant interim custody to the respondent. Nevertheless the trial Court had also observed that the respondent being father of the minor child was equally entitled to spend time with his minor child and to bestow his love and affection on his daughter. In other words, the observation of the trial Court in its order dated 15th February 1997 regarding the necessity or entitlement of the father to spend some time with his minor daughter was in the facts and circumstances disclosed in paragraph 10 and 11 of the said order which clearly disclose that the materials on record do not suggest in any manner that there were any compelling circumstances warranting interference of the Court to grant interim custody to the respondent. At this stage it is pertinent to note that absolutely nothing has been brought on record by the respondent to show that there has been any change in the said situation after passing the Order dated 15-2-97. In other words, the facts that the respondent is not having any elderly person to look after the child in his absence when he goes to attend his job and that no compelling circumstances warranting interim custody of the child Saniya for 10 days with the respondent has been disclosed by the respondent at this stage are not in dispute and therefore there is no change in the said situation which was prevailing as on 15-2-97. The impugned order did not refer to any such material having been brought on record and rightly so, because there is no such materials placed on record.
10. The observation of the trial Court that “question of summer vacation was not raised in the said application nor the same was considered in the said order” clearly shows non-application of mind of the trial Court to the matter in issue. Summer vacation is not a new thing which occurred only in March, 1998. Every educational year is followed by summer vacation. In that view of the matter it cannot be said that the respondent was unaware of the fact that his minor daughter Saniya would be enjoying summer vacation in the year 1998 after answering her examination of Standard VI having started in the said Standard in the academic year 1997-1998. The respondent cannot be said to have been unaware of this fact at the time the matter was heard and decided by Order dated 15-2-97. Though the principle of res judicata may not be strictly applicable here, nevertheless the principle incorporated in Explanation IV of section 11 cannot be completely overlooked. Considering this fact the observation of the trial Court that the question of summer vacation was not raised in the earlier application and was not considered by the trial Court while passing the order dated 15th February 1997 not only discloses non-application of the mind to the matter in issue and the law applicable thereto but clearly discloses improper exercise of its jurisdiction while disposing of the application.
11. Moreover the matter pertains to the custody of the minor child and cannot be disposed of merely because there was a jurisdictional error on the part of the trial Court and the matter requires to be considered on the merits of the case. The trial Court while disposing the earlier application for interim custody has clearly observed as already held above that there is no elderly female member available in the family of the respondent to look after the minor child in the absence of the respondent when he goes to attend his job. The trial Court also observed that for the healthy growth of the minor child the differences between the parents should not be taken into consideration and no fault can be found with such observation of the trial Court. As already observed above the respondent has not brought on record any material to show or to justify any change in the circumstance at the residence of the respondent or that any member of the family is available to look after the child in his absence at his residence since 15-2-97 or any time thereafter. The trial Court in its Order dated 15th February 1997 after taking into consideration all the pros and cons had decided to reject the interim custody of the child to the respondent. There was no reaction by the respondent against the said order. In these circumstances it cannot be said even on merits that there is any case made out by the respondent for any modification or change in the Order dated 15th February 1997 and to permit the custody of the minor child even for 10 days to the respondent.
12. The decision of the Delhi High Court relied upon by the learned Advocate for the respondent lays down broad principles of law to be followed while deciding the matter relating to the custody of the minor child. Moreover, the judgment is clearly distinguishable on facts. In the said case the Delhi High Court has clearly observed that the father is a natural guardian of the children and the burden of proving that he is incapable of looking after the welfare of the children was on the petitioner mother particularly when the children are not in a position to make an intelligent preference. Undisputedly in the instant case the trial Court in its Order dated 15th February 1997 has dearly held that in the facts and circumstances the respondent will not be in a position to look after the minor child Saniya and, therefore, the interim custody of minor child Saniya to the respondent was rejected. That observation remains undisturbed. The respondent never even thought of challenging that decision of the trial Court in its Order dated 15-2-97. In this background the judgment of the Delhi High Court has no application to the case in hand.
13. As regards the decision of our High Court in the matter of Agnelo Rasquinha (supra), there is absolutely no difficulty in placing reliance upon the same, not to justify the impugned order but to justify the interference therein by the High Court. This Court has held in the said decision of Agnelo Rasquinha (supra) that though the Court is at liberty to interview children, the Court is not bound to follow the wishes of the children, if it is found that the children are immature and incapable of forming their opinion. This proposition only speaks about the discretion of the Court to be exercised in the matter of custody of the minor child. In fact, I have personally interviewed the minor child in the presence of both the parents after hearing the arguments by the Counsel for both the parties. After thorough interview with her, I found that she fares comfortably well in her studies and has secured second rank. Besides, she has sufficient interest in extracurricular activities and games. She has already completed 10 years of age. Though she is immature and incapable to form her own opinion, from whatever that was disclosed by her in the course of the interview, I do not see any justification for confirming the order of interim custody of 10 days in favour of the respondent or for any such interim custody of the minor child Saniya with the respondent pending the final disposal of the suit. Moreover, my decision is not based on merely what has transpired from the interview but is based on entire materials on record. Certainly what has been disclosed by the child in the course of the interview cannot be discarded as totally irrelevant.
14. The decision of the Apex Court relied upon by the learned advocate for the petitioner in the matter of Arjun Singh (supra) is of relevancy to the matter in issue. In the said case the Apex Court has held that the scope of principle of res judicata is not confined to what is contained in section 11 but is of more general application. Again the principle of res judicata could be as very much applicable to different stages of the same suit. It has further held that where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. In the instant case the issue before the trial Court while deciding the matter on 15th February 1997 was pertaining to interim custody of the minor child Saniya. The issue before the trial Court while deciding the application under consideration by the impugned order was not different from the interim custody of the minor child. Only difference was that while deciding the matter on 15th February 1997 the Court was concerned about the interim custody of the minor child during the entire pendency of the suit whereas while deciding the application by the impugned order, the Court was concerned with half the period of the summer vacation of 1998. Once the trial Court had considered all the pros and cons and had arrived at the finding that it was not in the interest of the child to grant the interim custody to the respondent during the pendency of the suit, question of granting interim custody during the summer vacation of 1998 could not have been reconsidered by the trial Court unless the respondent had reacted in a lawful manner against the finding arrived at by the trial Court in its Order dated 15-2-97 or the respondent had been able to bring on record the change in the circumstances from those were prevailing on 15-2-97, warranting disturbance in the custody of the minor child Saniya.
15. In this view of the matter, the trial Court has clearly acted in improper exercise of its jurisdiction in granting interim custody of the minor child to the respondent for a period of 10 days from 15th May, 1998 to 25th May, 1998 and, therefore, the same cannot be sustained and is liable to be set aside.
16. In the result, therefore, the revision application succeeds and the impugned order is set aside. However, there shall be no order as to costs.
17. Application succeed.

custody of child given to mother

custody of child given to mother

Custody of child given to mother
“On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.”
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Review Application No.51 of 2009
R.Swaminathan … petitioner
Vs.
Sivagowri … Respondent
Review Application filed under Order XLVII Rule 1 of the Civil Procedure Code r/w.114 of C.P.C., reviewing the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.1.2009.
For petitioner : Mr.I.Subramanian, S.C.
For M/s.Uma Vijayakumar
For respondent : Mrs.Sudha Ramalingam
ORDER
The petitioner/respondent/husband has filed this Review Application praying this court to review its order dated 20.01.2009 made in CRP.(PD).No.4091 of 2008.
2.Earlier, the respondent/petitioner/wife has filed C.R.P.(PD).No.4091 of 2008 before this Court as against the order dated 14.11.2008 in I.A.No.1420 of 2008 in O.P. No.3556 of 2007 passed by the learned First Additional Judge, Family Court, Chennai in directing the respondent/ wife to hand over the child to the petitioner/respondent/ husband on every Sunday at 9.00 a.m. at a common place agreed to by both and the petitioner/husband has been directed to hand over the child to the respondent/wife on the same day at 5.00 p.m. at the same place etc.
3.This court on 20.01.2009 in C.R.P.(PD).No.4091 of 2008 has passed the following order:
"One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/ wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m. at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m. at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/ wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future."
4.In the grounds of review, the petitioner/husband has averred that this Court has erred in modifying the order of the Family Court passed in I.A.No.1420 of 2008 much detriment of the petitioner/review applicant’s right to visit his daughter/child for one day in a week and that the petitioner suffered both physical and mental torture at the hands of respondent/wife since the marriage has been a turbulent one and the torture so inflicted on the petitioner by the respondent/wife has been to such an extent that it traumatised the child a great deal and further that he is keen that the child must be brought up in a peaceful, serene and calm environment and the daughter has developed a parental alienation syndrome and the previous school in which she has been studying has advised the petitioner/father to take the child for a professional counseling and moreover, the petitioner’s belongings such as certificates, laptop etc. are all in respondent/wife’s custody and she has refused to give it back to the petitioner and that the child has been shifted from Vidyodaya Matriculation Academy without consulting the petitioner/husband and that the petitioner/husband has been forced to pay the donation of Rs.65,000/- for admission in the Chettinad Vidyashram School and also that the respondent/wife in order to have total control over the child has got a job as a Teacher in the same school and that the petitioner/husband is neither allowed to meet the child nor the school authorities to enquire about the child’s progress and well being and as a matter of fact, the correspondent of Vidyodaya Schools Society (the previous school where the child has been studying) has now given the petitioner a letter dated 09.2.2009 which has not been available when the order has been passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the order of the Family Court dated 14.11.2008 in I.A.No.1420 of 2008 in O.P.No.3556 of 2007 satisfied the parties who have been benefited by the same and this Court has declined to set aside the order of the Family Court in toto while passing orders in C.R.P.(PD).No.4091 of 2008 but reduce the number of times the petitioner/father can visit his daughter and the contents of the letter dated 09.02.2009 given by the Vidyodaya Schools Society may warrant review of the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and restore the visitation rights of the petitioner/husband as initially granted by the Family Court etc.
5.The further pleas of the petitioner/husband are that the letter dated 09.2.2009 of the Headmistress of Vidyodaya Schools Society that the petitioner/husband has visited the school only during lunch break and that too only on the insistence of the Teacher and not as stated by the respondent/wife in her affidavit and indeed the parents have equal rights to the child/daughter and neither parties rights are superior to that of the other and that the plight of the petitioner has been deprived of the company of his precious daughter.
6.According to the learned counsel for the petitioner that the order passed in matrimonial proceedings are interlocutory orders and not the final orders and even in compromise orders a modification order can be filed and as far as the petitioner/husband is concerned, he is not interested in initiating the contempt proceedings against the respondent/wife and as per Section 6 of the Hindu Minority and Guardianship Act, the father viz., the petitioner is the natural guardian of the Hindu minor and that the statute mandates that the father is the natural guardian and in the present case before us, the child/ daughter is 8 years and there is nothing to indicate that the petitioner/father is disqualified and when the respondent/wife has floated the orders passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009, she cannot avail the benefit of the said order.
7.In support of the contention that custody orders passed by the Court in matrimonial proceedings are an interlocutory one, the learned counsel for the petitioner cites the decision in B.Suresh Babu V. Nithya 2009 (1) CTC 402 wherein this Court has held that ‘revision under Article 227 of the Constitution could be maintainable only if there is no alternative remedy available to prevent abuse of process of Court and to meet ends of justice under the supervisory power of the High Court and further it is the settled proposition of law that in case of custody of minor child, welfare of child is paramount and even orders passed on compromise has to be treated as an Interlocutory Order subject to modification and that the revision petitioner/father of the child is entitled to place all his defence to substantiate his visiting right as per compromise decree and Court below is empowered to decide the same on merits and that the respondent has to establish alleged change of circumstance warranting filing of an application and justify the relief sought for and taht the Court is not an functus officio.’
8.He also relies on the decision of Hon’ble Supreme Court in Jai Prkash Khadria V. Shyam Sunder Agarwalla and another in (2000) 6 Supreme Court Cases 598 at page 599 wherein it is held that ‘orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.’
9.The learned counsel for the petitioner/husband brings it to the notice of this Court in the decision of Hon’ble Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu (2008) 9 SCC 413 wherein the Hon’ble Supreme Court has inter alia observed that ‘in regard to the issues pertaining to the custody of minor the same should be handled with love, affection, sentiments and applying human touch to the problem.’
10.It is to be borne in mind that as a general rule, the Court will appoint the father as a guardian of the minor and will not deprive him of the custody of minor if it is satisfied that having regard to the facts and circumstances of the case, the father must have the custody of the minor. In all such cases, the vital consideration in appointing the guardian ought to be the welfare of the minor child and the Court may not give custody of the minor to the father. In the decision Mohini V. Veerendrakumar AIR 1977 S.C., it is held that ‘the mother is entitled to guardianship and custody of minor son 11 years old.’
11.When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. However, there can be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive. Where the father of the minor has been alive, but the father and mother has fallen down and the mother with whom the minor has been living and has been managing the affairs of the minor daughter for over 20 years it is held that a lease executed by the mother on behalf of the minor has been valid and binding on the minor, the mother being recorded as a natural guardian of the minor in the particular circumstances as per decision Jijabai Vithalrao Gajre V. Pathankhan AIR 1971 SC 315.
12.The learned counsel for the petitioner/husband submits that he is not seeking a review of the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 but prays for an issuance of an order to modify the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009.
13.In response, the learned counsel for the respondent/wife submits that the review application is not maintainable before this Court since there is no error apparent on the face of record in the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the review jurisdiction is an extraordinary remedy in limited cases and that is not similar to an appeal and under the guise of review, the petitioner ought not to be permitted to re-agitate the pleas and in fact, the petitioner has not made out a case that the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 suffers from an error apparent on the face of record and as such, the review application is liable to be dismissed.
14.In support of the contention that rehearing the matter for deducting an error in the earlier decision and then correcting the same do not fall within the purview of review jurisdiction, the learned counsel for the respondent /wife cites the decision of Hon’ble Supreme Court in Parsion Devi and others V. Sumitri Devi and others (1997) 8 SCC 715 at page 716 wherein it is inter alia observed as follows: "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
15.Also reliance is placed on the decision in Meera Bhanja V. Nirmala Kumari Choudhury (1995) 1 SCC 170 wherein it is laid down that ‘review must be confined to error apparent on the face of the record and error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning and reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction which is permissible etc.’
16.In the additional affidavit of the petitioner/ husband it is among other things mentioned that ‘for 8 months he has been denied access to his daughter and finally the Family Court in I.A.No.1420 of 2007 granted him two hours visitation rights of Thursdays and after his daughter’s school reopened this has been reduced to one hour a week on the request of the respondent/wife before the Court and the Family Court passed final orders in I.A.No.1420 of 2007 on 14.11.2008 granting him visitation rights on all Sundays from 9.00 a.m. to 5.00 p.m. and when this has been challenged in C.R.P.(PD).No.4091 of 2008 orders have been passed reducing the visitation rights to the first and third Sundays in a month and pending adjudication of the review application, a changed circumstance has occurred and on 04.06.2009 Mr.Dilip, the junior of his wife’s counsel called and told him to pay the child’s school fees and when the authorities of the school wanted him to furnish the roll number of the child which he is not aware and the authorities after verifying the records has come back and informed him that he cannot pay the fees as they have been instructed by his wife not to entertain him at any cost or to give any access to the child or information about her progress in the school and the school authorities refuse to allow him to pay the fees and asked him to leave the school premises and he has an equal right to the welfare of the child.
17.In the counter filed (in the review application) by the respondent/wife, it is among other things stated that it is the husband who volunteered to pay school fees and donation to Chettinad Vidyashram School before the Family Court Judge and he enjoyed visitation rights on Thursdays in the child care centre at the Family Court premises and there is no need for him to visit the child in the school and disturb her in the presence of her other classmates and schoolmates and she has obeyed the orders of the Family Court and this Court except on two occasions, when her daughter has been sick and when her family has gone on a pilgrimage and even on such occasions, she informed the husband duly through the Family Court counsellor Ms.Lalitha, in whose house the child is generally handed over during visitation hours and in fact, on her instruction, her counsel’s junior has requested the husband to pay the school fees as he has already volunteered to pay for it in the Family Court and that he has not paid the fees and therefore, she has paid the same and when the child is in her custody and the husband has only visitation rights on alternative Sundays, disturbing the child at any other time violates the rights of the child and that of her to live in peace and harmony and the review petitioner/ husband has no new circumstances to substantiate his claim for review and has been engaging in vexatious litigation purely to harass her and her family.
18.In the decision of this Court in K.Jagannathan V. A.M.Vasudevan Chettiar and others (2001) 1 M.L.J. 614 it is held that ‘Admittedly the mother has not alienated the property of the minor. Under the document joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Sec.6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection.’
19.It is not out of place to point out that as per Section 26 of the Hindu Marriage Act, the Court, pending the matrimonial proceedings from time to time, may pass orders as to the interim custody of the minor child.
20.This Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 by directing the revision petitioner/wife to hand over the child Shreya to the respondent/husband (review petitioner/father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. etc. has not denied a complete access to the review petitioner/husband.
21.The power of review under Order 47 Rule 1 constitute an exception to the general rule to the effect that once a judgment is signed and delivered it cannot afterwards be altered. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error as per decision in Saravana Pillai V. A.S.Mariappan 2003 1 MLJ 693. Indeed, the ambit of review is for review of ‘error apparent’ only and not to review the judgment/order, even if the parties are placed in a situation to satisfy the Court that the order under review is an erroneous one as per decision Ahmedabad Electricity Company Limited V. State of Gujarat AIR 2003 Guj 157 (159) D.B. The aim is not to enable a Judge to write a second judgment because the first one was wrong as per decision in Krishnan V. Narayanan AIR 1951 Madras at page 660.
22.Even if a decision or an order is erroneous in law or on merits it cannot be accepted that it is an error apparent on the face of the record. Where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous cannot be said to be an error apparent on the face of the record. There exist a distinction between a mere erroneous decision and an error apparent on the face of the record. An error can be said to be apparent on the face of record only when such an error is patent and can be found out without any detail argument without any scope for any controversy in regard to such error, which as if at a glance stares at the face. But if there is no error apparent on the face of record review petition is not maintainable as per decision Kailash Talkies V. State of Rajesthan 1998 AIHC 2401. Moreover, if a view adopted by the Court in the original order is a possible view, it cannot be an error apparent on the face of record even though another view is also possible as per decisionC.N.Ramachandra V. State AIR 1997 Kant 181, 183. In short, a review cannot repair the verdict once given if it is not an error on the face of it as per decision in Sabad Ch Deka V. Naomai Deka AIR 1985 NOC 19 (Gau).
23.A review petition has to be entertained only on the face of the error apparent on the face of record but not on any other reason in the considered opinion of this Court. The limitation of the power of a Court of law under Order 47 Rule 1 C.P.C. is akin to the jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution as per decisionMeera Bhanja V. Nirmal Kumar Choudhury (1995) 1 SCC at page 170. Mere possibility of two views is not a ground for review, the review Court cannot said as an Appellate Court therefore, reassessing the evidence and pointing out the defects in the order of the Court is not proper as per decision Santhosh Kumar V. Nageshwar Prasad AIR 2001 All 187. Admittedly, the power of review the hedged in by the restrictions specified in Order 47 it can be exercised on the application of an individual on the discovery of new matter of evidence which, after the exercise of due diligence has not been within its knowledge or could not be produced by him at the time when the order has been made. Suffice it for this Court to point out that a review cannot be claimed or asked for merely for a fresh hearing or an argument, or a correction on an erroneous view taken earlier, that is to say, the power of review can be exercised only for the correction of a patent error of law or fact which stares in the face without any detail arguments being required for establishing the same. The expression ‘any other sufficient reason’ employed in Order 47 Rule 1 means a reason sufficiently analogous to those mentioned in the rule.
24.Mere discovery of vital new matter or evidence is not sufficient ground for a review. A party seeking review has also to establish that such additional material has not been within its knowledge and even after the exercise of due diligence could not be produced any Court earlier. An error contemplated under Order 47 Rule 1 C.P.C. must be such which is an apparent on the face of record and not an error which has to be fished out and searched in the considered opinion of this Court A reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by the constitute.
25.The learned counsel for the respondent/wife cites the decision in Mohan Lal Bagla V. Board of Revenue AIR 2005 All 308 wherein it is held as follows:
"To argue same details as a question of fact in second inning of the matter cannot be permitted. It is under very exceptional circumstances where it can be demonstrated that on the finding and reasoning so given, there is error apparent on the face of record which can be termed to be mistake within the meaning of error apparent as that can be discovered without any argument, it may be filed by a new advocate but that too after obtaining no objection from earlier counsel. If a case is to be argued on the same set of facts by change of counsel, at several occasions, it may be possible that with imminence of the counsel, a new dimension to the augment may come on same set of facts. Skill in the argument and advocacy is to vary always from counsel to counsel. Although earlier two senior advocates of this Court namely Sri R.N. Singh and Sri V.B. Upadhyaya argued the matters on behalf of applicant at length with full vehemence at their command but now Sri V.B. Singh, learned senior advocate wants to argue the matter in his own way by placing the same record and same pleadings. On the facts of present case, this Court is of the view that filing of review petition on the ground so taken in the application cannot be said to be just and proper so as to entitle Sri Saran, learned advocate and Sri Singh, learned senior advocate to file and argue this review petition. It is thus established that change of counsel during review proceedings is a deprecated practice that is actively discouraged by the Courts. Such practice acts as a backdoor to abuse of review proceedings. With changed counsel, pleas are re-agitated as though in appeal, thereby obliterating the distinct differences in the nature of appellate and review proceedings. The present case suffers from the same malady where the Petitioner is attempting to disguise his appeal in the cloak of review proceedings complete with change of counsel."
26.The learned counsel for the petitioner/husband submits that the Correspondent of Vidyodaya Schools Society, Chennai-600 017 in her letter dated 09.02.2009 addressed to the petitioner herein inter alia stating that the petitioner has come to Vidyodaya School only during lunch time at the insistence of her teacher who felt that she has been missing you and her impression that Shreya has been happy and relieved to see him and enjoyed the treats that you have brought and further the students of Standard I being only 5 years old neither understood nor commented on any family problem and it is her impression that Shreya enjoyed being a student of Vidyodaya Matriculation Academy and access to her has always only with the permission of the school authorities and only during the lunch interval and counselling for her has been recommended because of her behaviour in class room etc. and as such, the averments of the respondent/wife in her affidavit are false which in turn is a good ground for this Court to reconsider its order passed in the main civil revision petition. However, the learned counsel for the respondent/wife contends that the letter of the school Correspondent dated 09.02.2009 addressed to the petitioner/husband cannot be relied upon as it is contrary to facts and the same has been given solely to please him and further the Correspondent is not competent or qualify to enter a judgment in regard to the mental state of the child, apart from the fact that the said letter has been issued more than a year after the child has been transferred from the said school. In effect, the letter dated 09.02.2009 of the Correspondent of the Vidyodaya Schools Society addressed to the petitioner/ husband is very much disputed on the side of the respondent /wife. In this connection, it is apt for this Court to cite the decision of Hon’ble Supreme Court in Union of India V. Paul Manickam AIR 2003 SC 4622, 4629 wherein it is held that ‘the Court will not entertain a review petition with an entirely new substratum of issues or where there is suppression of facts.’ In the decision Bahadur V. Bachai AIR 1963 All. 186 it is observed that ‘the High Court cannot set aside or recall its own decision on a review application under Order 47 of C.P.C. but it can set right the wrong committed by it in exercise of its inherent jurisdiction. The learned counsel for the respondent/wife brings it to the notice of this Court that the Delhi High Court in Krishna Bus Service (P) Ltd., V. Satvir Singh, W.P.(C).No.3275/2001 (decided on 19.03.2008) has held as follows: "Discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with the diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduced fresh documents merely to supplement evidence which might possibly have had some effect on the result."
27.Added further, the learned counsel for the respondent/wife relies on the decision of Hon’ble Supreme Court in Tamil Nadu Electricity Board V. N.Raju Reddiar (1997) 9 SCC 736 wherein it is held as follows:
"…. except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." Furthermore, in the aforesaid decision it is observed as follows:
"Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
The application is dismissed with exemplary costs of Rs.20,000 as it is an abuse of the process of Court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from the date of judgment."
28.The utmost requirement under Order 47 Rule 1 of C.P.C. is that the order of which review is sought suffers from any error apparent on the face of order and permitting the order to stand will lead to failure of justice as per decision Rajendra Kumar V. Ram Bai AIR 2003 SC 2095 (2096). No wonder, the power of review is not to be confused with the appellate power which enable the appellate Court to correct all errors of Subordinate Court. A review means the act of looking, offer something again with a view to correction or improvement and that the same is also not an appeal in disguise as per decision Lily Thomas V. Union of India AIR 2000 SC 1650 (1652). Also there cannot be a reappraisal of the entire evidence on record for finding an error. It is needless to state that if there is reappraisal, it will amount to exercise of appellate jurisdiction, which is not permissible. The learned counsel for the respondent/wife refers to the decision of Hon’ble Supreme Court in Thungabhadra Industries Limited V. The Government of Andhra Pradesh, 1965 (5) SCR 174 (186) wherein it is held that ‘a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.’ Another decision of this Court in Hindustan Photo Films Company Limited and another V. H.B. Vinobha and others AIR 1998 Madras 358 is relied on the side of the respondent/wife wherein it is held as follows: "the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, It may not be exercised on the ground that the decision was erroneous on merits since that would be the province of Court of Appeal and the same cannot be a ground for review. Where the very same objections were raised in review which were earlier raised and considered on the fact of information furnished by both sides while disposing of the writ petitions, the review applications would be liable to be dismissed."
29.In regard to the contention that the orders pertaining to custody of children are interlocutory in nature and subject to modification at any future time based on proof of change of circumstance and such change in custody ought to be established in the paramount interest of the child, the learned counsel for the petitioner refers to the decision of Hon’ble Supreme Court in Rosy Jacob V. Jacob A. Chakramakkal (1973) 1 SCC 840.
30.On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.
31.In fine, the Review Application is dismissed, leaving the parties to bear their own costs. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised. Considering the relationship of the parties and the facts and circumstances of the case, there shall be no order as to costs. 3.08.2009
Index : Yes
Internet : Yes
sgl
To
The I Additional Judge,
Family Court, Chennai.
M.VENUGOPAL, J.

Child Visitation right of father

Child Visitation right of father

Child Visitation right to father.
“In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2704 OF 2010
(Arising out of SLP(C) No.19935/2009) Vikram Vir Vohra ..Appellant(s) Versus
Shalini Bhalla ..Respondent(s) J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal by the husband, impugns the judgment and order dated 27.07.09 of Delhi High Court which upheld the judgment and order of the Additional District Judge passed in relation to applications filed by both the parties under Section 26 of the Hindu Marriage Act (hereinafter "the Act"). The impugned judgment 1

 permitted the respondent-wife to take the child with her to Australia.
3. The material facts of the case are that the parties to the present appeal were married as per the Hindu rites on 10.12.2000. A child, Master Shivam, was born to them on 05.08.02. In view of irreconcilable differences between the parties they had agreed for a divorce by mutual consent under Section 13-B of the Act and filed a petition to that effect and on 05.09.06 a decree of divorce on mutual consent was passed by the Additional District Judge, Delhi.
4. As regards the custody of the child there was some settlement between the parties and according to the appellant the same was incorporated in paras 7 and 9 of the petition filed under Section 13-B (2) of the Act. Those paragraphs are as under:
"The parties have agreed that the custody of the minor son Master Shivam shall remain with the mother, petitioner No.1 who being the natural mother is also the guardian of the son Master Shivam as per law laid down by the Supreme Court of India. It is, however, agreed that the father petitioner shall have right of 2

 visitation only to the extent that the child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM on a Saturday where the child is with his mother. And on the same day at by 6.30 PM, the petitioner No.2 would leave the child back at the same place with the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1 the mother shall collect the child from petitioner No.2 on the same day. Both parties undertake before this Hon’ble Court that they would not create any obstruction in implementation of this arrangement.
The petitioner No.1 shall take adequate care of the child in respect of health, education etc., at her own cost. In case the petitioner No.1 changes her address or takes the child outside Delhi, she shall keep petitioner No.2 informed one week in advance about the address and telephone nos. and the place where the child would be staying with the mother, to enable the petitioner No.2 to remain in touch with the child.
The petitioner No.1 has received all her Stridhan and other valuables, articles and other possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1 and the child Shivam has no claim to any property or financial commitment from petitioner No.2 and all her claims are settled fully and finally".
5. Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08 and the 3

 appellant-husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of those terms and conditions about the custody of the child.
6. The respondent was basing her claim on the fact that she wanted to take the child with her to Australia where she was employed for gain with a request to revoke the visitation rights granted to the appellant for meeting the child. This she felt will be conducive to the paramount interest and welfare of the child. The appellant on the other hand sought permanent custody of the child under the changed circumstances alleging that it is not in the interest of the child to leave India permanently.
7. The Trial Court vide its order dated 06.04.09 took notice of the fact that in the joint petition of divorce, parties voluntarily agreed that the custody of the child shall remain with the mother and father shall have only visiting rights, in the manner indicated in the mutual divorce decree. The Court modified the terms and 4

 conditions of the custody and visitation rights of the appellant about the minor child. By its order the Trial Court had allowed the respondent to take the child with her to Australia but also directed her to bring the child back to India for allowing the father visitation rights twice in a year i.e. for two terms – between 18th of December to 26th of January and then from 26th of June to 11th of July.
8. Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court. It was argued by the appellant since no decree was passed by the Court while granting mutual divorce, an application under Section 26 of the Act does not lie and in the absence of specific provision in the decree regarding the custody and visitation rights of the child, the Trial Court has no jurisdiction to entertain the petition afresh after passing of the decree.
9. The High Court took into consideration the provisions of Section 26 of the Act and was of the view that the aforesaid provision is 5

 intended to enable the Court to pass suitable orders from time to time to protect the interest of minor children. However, the High Court held that after the final order is passed in original petition of divorce for the custody of the minor child, the other party cannot file any number of fresh petitions ignoring the earlier order passed by the Court.
10. The Court took into consideration that even if the terms and conditions regarding the custody and visitation rights of the child are not specifically contained in the decree, they do form part of the petition seeking divorce by mutual consent. It was of the view that absence of the terms and conditions in the decree does not disentitle the respondent to file an application under Section 26 of the Act seeking revocation of the visitation rights of the appellant.
11. It is important to mention here that the learned Judge of the High Court had personally interviewed the child who was about 7 years old 6

 to ascertain his wishes. The child in categorical terms expressed his desire to be in the custody and guardianship of his mother, the respondent. The child appeared to be quite intelligent. The child was specifically asked if he wanted to live with his father in India but he unequivocally refused to go with or stay with him. He made it clear in his expression that he was happy with his mother and maternal grandmother and desired only to live with his mother. The aforesaid procedure was also followed by the learned Trial Court and it was also of the same view after talking with the child.
12. Being aggrieved with the judgment of the High Court the appellant has approached this Court and hence this appeal by way of Special Leave Petition.
13. We have also talked with the child in our chambers in the absence of his parents. We found him to be quite intelligent and 7

 discerning. The child is in school and from the behaviour of the child, we could make out that he is well behaved and that he is receiving proper education.
14. The child categorically stated that he wants to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli - (2008) 7 SCC 673, para 19, page 678]. We have considered this matter in all its aspects.
15. The argument of the learned counsel for the appellant, that in view of the provisions of Section 26 of the Act, the order of custody of the child and the visitation rights of the 8

 appellant cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.
16. In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.
17. In Rosy Jacob vs. Jacob A Chakramakkal - [(1973) 1 SCC 840], a three judge Bench of 9

 this Court held that all orders relating to custody of minors were considered to be temporary orders. The learned judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.
18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. Madhav Unde - [(1998) 1 SCC 112].
19. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and 10

 secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.
20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha Nagpalreported in (2009) 1 SCC 42 are very pertinent. Those principles in paragraphs 42 and 43 are set out below:
"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
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".
11

21. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court’s discretion in custody order. See Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka - [AIR 1982 SC 1276], para 17.
22. In the factual and legal background considered above, the objections raised by the appellant do not hold much water.
23. Now coming to the question of the child being taken to Australia and the consequent variations in the visitation rights of the father, this Court finds that the Respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact a right to development is a basic human right. The respondent-mother cannot be asked to choose between her child 12

 and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both.
24. Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant-father, for all these years, lived without the child and got used to it. 13

25. In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.
26. In that view of the matter, this Court refuses to interfere with the order passed by the High Court. The appeal is dismissed with the direction that the respondent-mother, 14

 before taking the child to Australia, must file an undertaking to the satisfaction of the Court of Additional District Judge-01, (West), Delhi within a period of four weeks from date. No order as to costs.
…………………..J.
(G.S.SINGHVI)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi

Custody of Child to mother

custody of child given to mother

Custody of child given to mother
“On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.”
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Review Application No.51 of 2009
R.Swaminathan … petitioner
Vs.
Sivagowri … Respondent
Review Application filed under Order XLVII Rule 1 of the Civil Procedure Code r/w.114 of C.P.C., reviewing the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.1.2009.
For petitioner : Mr.I.Subramanian, S.C.
For M/s.Uma Vijayakumar
For respondent : Mrs.Sudha Ramalingam
ORDER
The petitioner/respondent/husband has filed this Review Application praying this court to review its order dated 20.01.2009 made in CRP.(PD).No.4091 of 2008.
2.Earlier, the respondent/petitioner/wife has filed C.R.P.(PD).No.4091 of 2008 before this Court as against the order dated 14.11.2008 in I.A.No.1420 of 2008 in O.P. No.3556 of 2007 passed by the learned First Additional Judge, Family Court, Chennai in directing the respondent/ wife to hand over the child to the petitioner/respondent/ husband on every Sunday at 9.00 a.m. at a common place agreed to by both and the petitioner/husband has been directed to hand over the child to the respondent/wife on the same day at 5.00 p.m. at the same place etc.
3.This court on 20.01.2009 in C.R.P.(PD).No.4091 of 2008 has passed the following order:
"One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/ wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m. at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m. at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/ wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future."
4.In the grounds of review, the petitioner/husband has averred that this Court has erred in modifying the order of the Family Court passed in I.A.No.1420 of 2008 much detriment of the petitioner/review applicant’s right to visit his daughter/child for one day in a week and that the petitioner suffered both physical and mental torture at the hands of respondent/wife since the marriage has been a turbulent one and the torture so inflicted on the petitioner by the respondent/wife has been to such an extent that it traumatised the child a great deal and further that he is keen that the child must be brought up in a peaceful, serene and calm environment and the daughter has developed a parental alienation syndrome and the previous school in which she has been studying has advised the petitioner/father to take the child for a professional counseling and moreover, the petitioner’s belongings such as certificates, laptop etc. are all in respondent/wife’s custody and she has refused to give it back to the petitioner and that the child has been shifted from Vidyodaya Matriculation Academy without consulting the petitioner/husband and that the petitioner/husband has been forced to pay the donation of Rs.65,000/- for admission in the Chettinad Vidyashram School and also that the respondent/wife in order to have total control over the child has got a job as a Teacher in the same school and that the petitioner/husband is neither allowed to meet the child nor the school authorities to enquire about the child’s progress and well being and as a matter of fact, the correspondent of Vidyodaya Schools Society (the previous school where the child has been studying) has now given the petitioner a letter dated 09.2.2009 which has not been available when the order has been passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the order of the Family Court dated 14.11.2008 in I.A.No.1420 of 2008 in O.P.No.3556 of 2007 satisfied the parties who have been benefited by the same and this Court has declined to set aside the order of the Family Court in toto while passing orders in C.R.P.(PD).No.4091 of 2008 but reduce the number of times the petitioner/father can visit his daughter and the contents of the letter dated 09.02.2009 given by the Vidyodaya Schools Society may warrant review of the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and restore the visitation rights of the petitioner/husband as initially granted by the Family Court etc.
5.The further pleas of the petitioner/husband are that the letter dated 09.2.2009 of the Headmistress of Vidyodaya Schools Society that the petitioner/husband has visited the school only during lunch break and that too only on the insistence of the Teacher and not as stated by the respondent/wife in her affidavit and indeed the parents have equal rights to the child/daughter and neither parties rights are superior to that of the other and that the plight of the petitioner has been deprived of the company of his precious daughter.
6.According to the learned counsel for the petitioner that the order passed in matrimonial proceedings are interlocutory orders and not the final orders and even in compromise orders a modification order can be filed and as far as the petitioner/husband is concerned, he is not interested in initiating the contempt proceedings against the respondent/wife and as per Section 6 of the Hindu Minority and Guardianship Act, the father viz., the petitioner is the natural guardian of the Hindu minor and that the statute mandates that the father is the natural guardian and in the present case before us, the child/ daughter is 8 years and there is nothing to indicate that the petitioner/father is disqualified and when the respondent/wife has floated the orders passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009, she cannot avail the benefit of the said order.
7.In support of the contention that custody orders passed by the Court in matrimonial proceedings are an interlocutory one, the learned counsel for the petitioner cites the decision in B.Suresh Babu V. Nithya 2009 (1) CTC 402 wherein this Court has held that ‘revision under Article 227 of the Constitution could be maintainable only if there is no alternative remedy available to prevent abuse of process of Court and to meet ends of justice under the supervisory power of the High Court and further it is the settled proposition of law that in case of custody of minor child, welfare of child is paramount and even orders passed on compromise has to be treated as an Interlocutory Order subject to modification and that the revision petitioner/father of the child is entitled to place all his defence to substantiate his visiting right as per compromise decree and Court below is empowered to decide the same on merits and that the respondent has to establish alleged change of circumstance warranting filing of an application and justify the relief sought for and taht the Court is not an functus officio.’
8.He also relies on the decision of Hon’ble Supreme Court in Jai Prkash Khadria V. Shyam Sunder Agarwalla and another in (2000) 6 Supreme Court Cases 598 at page 599 wherein it is held that ‘orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.’
9.The learned counsel for the petitioner/husband brings it to the notice of this Court in the decision of Hon’ble Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu (2008) 9 SCC 413 wherein the Hon’ble Supreme Court has inter alia observed that ‘in regard to the issues pertaining to the custody of minor the same should be handled with love, affection, sentiments and applying human touch to the problem.’
10.It is to be borne in mind that as a general rule, the Court will appoint the father as a guardian of the minor and will not deprive him of the custody of minor if it is satisfied that having regard to the facts and circumstances of the case, the father must have the custody of the minor. In all such cases, the vital consideration in appointing the guardian ought to be the welfare of the minor child and the Court may not give custody of the minor to the father. In the decision Mohini V. Veerendrakumar AIR 1977 S.C., it is held that ‘the mother is entitled to guardianship and custody of minor son 11 years old.’
11.When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. However, there can be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive. Where the father of the minor has been alive, but the father and mother has fallen down and the mother with whom the minor has been living and has been managing the affairs of the minor daughter for over 20 years it is held that a lease executed by the mother on behalf of the minor has been valid and binding on the minor, the mother being recorded as a natural guardian of the minor in the particular circumstances as per decision Jijabai Vithalrao Gajre V. Pathankhan AIR 1971 SC 315.
12.The learned counsel for the petitioner/husband submits that he is not seeking a review of the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 but prays for an issuance of an order to modify the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009.
13.In response, the learned counsel for the respondent/wife submits that the review application is not maintainable before this Court since there is no error apparent on the face of record in the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the review jurisdiction is an extraordinary remedy in limited cases and that is not similar to an appeal and under the guise of review, the petitioner ought not to be permitted to re-agitate the pleas and in fact, the petitioner has not made out a case that the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 suffers from an error apparent on the face of record and as such, the review application is liable to be dismissed.
14.In support of the contention that rehearing the matter for deducting an error in the earlier decision and then correcting the same do not fall within the purview of review jurisdiction, the learned counsel for the respondent /wife cites the decision of Hon’ble Supreme Court in Parsion Devi and others V. Sumitri Devi and others (1997) 8 SCC 715 at page 716 wherein it is inter alia observed as follows: "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
15.Also reliance is placed on the decision in Meera Bhanja V. Nirmala Kumari Choudhury (1995) 1 SCC 170 wherein it is laid down that ‘review must be confined to error apparent on the face of the record and error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning and reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction which is permissible etc.’
16.In the additional affidavit of the petitioner/ husband it is among other things mentioned that ‘for 8 months he has been denied access to his daughter and finally the Family Court in I.A.No.1420 of 2007 granted him two hours visitation rights of Thursdays and after his daughter’s school reopened this has been reduced to one hour a week on the request of the respondent/wife before the Court and the Family Court passed final orders in I.A.No.1420 of 2007 on 14.11.2008 granting him visitation rights on all Sundays from 9.00 a.m. to 5.00 p.m. and when this has been challenged in C.R.P.(PD).No.4091 of 2008 orders have been passed reducing the visitation rights to the first and third Sundays in a month and pending adjudication of the review application, a changed circumstance has occurred and on 04.06.2009 Mr.Dilip, the junior of his wife’s counsel called and told him to pay the child’s school fees and when the authorities of the school wanted him to furnish the roll number of the child which he is not aware and the authorities after verifying the records has come back and informed him that he cannot pay the fees as they have been instructed by his wife not to entertain him at any cost or to give any access to the child or information about her progress in the school and the school authorities refuse to allow him to pay the fees and asked him to leave the school premises and he has an equal right to the welfare of the child.
17.In the counter filed (in the review application) by the respondent/wife, it is among other things stated that it is the husband who volunteered to pay school fees and donation to Chettinad Vidyashram School before the Family Court Judge and he enjoyed visitation rights on Thursdays in the child care centre at the Family Court premises and there is no need for him to visit the child in the school and disturb her in the presence of her other classmates and schoolmates and she has obeyed the orders of the Family Court and this Court except on two occasions, when her daughter has been sick and when her family has gone on a pilgrimage and even on such occasions, she informed the husband duly through the Family Court counsellor Ms.Lalitha, in whose house the child is generally handed over during visitation hours and in fact, on her instruction, her counsel’s junior has requested the husband to pay the school fees as he has already volunteered to pay for it in the Family Court and that he has not paid the fees and therefore, she has paid the same and when the child is in her custody and the husband has only visitation rights on alternative Sundays, disturbing the child at any other time violates the rights of the child and that of her to live in peace and harmony and the review petitioner/ husband has no new circumstances to substantiate his claim for review and has been engaging in vexatious litigation purely to harass her and her family.
18.In the decision of this Court in K.Jagannathan V. A.M.Vasudevan Chettiar and others (2001) 1 M.L.J. 614 it is held that ‘Admittedly the mother has not alienated the property of the minor. Under the document joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Sec.6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection.’
19.It is not out of place to point out that as per Section 26 of the Hindu Marriage Act, the Court, pending the matrimonial proceedings from time to time, may pass orders as to the interim custody of the minor child.
20.This Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 by directing the revision petitioner/wife to hand over the child Shreya to the respondent/husband (review petitioner/father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. etc. has not denied a complete access to the review petitioner/husband.
21.The power of review under Order 47 Rule 1 constitute an exception to the general rule to the effect that once a judgment is signed and delivered it cannot afterwards be altered. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error as per decision in Saravana Pillai V. A.S.Mariappan 2003 1 MLJ 693. Indeed, the ambit of review is for review of ‘error apparent’ only and not to review the judgment/order, even if the parties are placed in a situation to satisfy the Court that the order under review is an erroneous one as per decision Ahmedabad Electricity Company Limited V. State of Gujarat AIR 2003 Guj 157 (159) D.B. The aim is not to enable a Judge to write a second judgment because the first one was wrong as per decision in Krishnan V. Narayanan AIR 1951 Madras at page 660.
22.Even if a decision or an order is erroneous in law or on merits it cannot be accepted that it is an error apparent on the face of the record. Where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous cannot be said to be an error apparent on the face of the record. There exist a distinction between a mere erroneous decision and an error apparent on the face of the record. An error can be said to be apparent on the face of record only when such an error is patent and can be found out without any detail argument without any scope for any controversy in regard to such error, which as if at a glance stares at the face. But if there is no error apparent on the face of record review petition is not maintainable as per decision Kailash Talkies V. State of Rajesthan 1998 AIHC 2401. Moreover, if a view adopted by the Court in the original order is a possible view, it cannot be an error apparent on the face of record even though another view is also possible as per decisionC.N.Ramachandra V. State AIR 1997 Kant 181, 183. In short, a review cannot repair the verdict once given if it is not an error on the face of it as per decision in Sabad Ch Deka V. Naomai Deka AIR 1985 NOC 19 (Gau).
23.A review petition has to be entertained only on the face of the error apparent on the face of record but not on any other reason in the considered opinion of this Court. The limitation of the power of a Court of law under Order 47 Rule 1 C.P.C. is akin to the jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution as per decisionMeera Bhanja V. Nirmal Kumar Choudhury (1995) 1 SCC at page 170. Mere possibility of two views is not a ground for review, the review Court cannot said as an Appellate Court therefore, reassessing the evidence and pointing out the defects in the order of the Court is not proper as per decision Santhosh Kumar V. Nageshwar Prasad AIR 2001 All 187. Admittedly, the power of review the hedged in by the restrictions specified in Order 47 it can be exercised on the application of an individual on the discovery of new matter of evidence which, after the exercise of due diligence has not been within its knowledge or could not be produced by him at the time when the order has been made. Suffice it for this Court to point out that a review cannot be claimed or asked for merely for a fresh hearing or an argument, or a correction on an erroneous view taken earlier, that is to say, the power of review can be exercised only for the correction of a patent error of law or fact which stares in the face without any detail arguments being required for establishing the same. The expression ‘any other sufficient reason’ employed in Order 47 Rule 1 means a reason sufficiently analogous to those mentioned in the rule.
24.Mere discovery of vital new matter or evidence is not sufficient ground for a review. A party seeking review has also to establish that such additional material has not been within its knowledge and even after the exercise of due diligence could not be produced any Court earlier. An error contemplated under Order 47 Rule 1 C.P.C. must be such which is an apparent on the face of record and not an error which has to be fished out and searched in the considered opinion of this Court A reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by the constitute.
25.The learned counsel for the respondent/wife cites the decision in Mohan Lal Bagla V. Board of Revenue AIR 2005 All 308 wherein it is held as follows:
"To argue same details as a question of fact in second inning of the matter cannot be permitted. It is under very exceptional circumstances where it can be demonstrated that on the finding and reasoning so given, there is error apparent on the face of record which can be termed to be mistake within the meaning of error apparent as that can be discovered without any argument, it may be filed by a new advocate but that too after obtaining no objection from earlier counsel. If a case is to be argued on the same set of facts by change of counsel, at several occasions, it may be possible that with imminence of the counsel, a new dimension to the augment may come on same set of facts. Skill in the argument and advocacy is to vary always from counsel to counsel. Although earlier two senior advocates of this Court namely Sri R.N. Singh and Sri V.B. Upadhyaya argued the matters on behalf of applicant at length with full vehemence at their command but now Sri V.B. Singh, learned senior advocate wants to argue the matter in his own way by placing the same record and same pleadings. On the facts of present case, this Court is of the view that filing of review petition on the ground so taken in the application cannot be said to be just and proper so as to entitle Sri Saran, learned advocate and Sri Singh, learned senior advocate to file and argue this review petition. It is thus established that change of counsel during review proceedings is a deprecated practice that is actively discouraged by the Courts. Such practice acts as a backdoor to abuse of review proceedings. With changed counsel, pleas are re-agitated as though in appeal, thereby obliterating the distinct differences in the nature of appellate and review proceedings. The present case suffers from the same malady where the Petitioner is attempting to disguise his appeal in the cloak of review proceedings complete with change of counsel."
26.The learned counsel for the petitioner/husband submits that the Correspondent of Vidyodaya Schools Society, Chennai-600 017 in her letter dated 09.02.2009 addressed to the petitioner herein inter alia stating that the petitioner has come to Vidyodaya School only during lunch time at the insistence of her teacher who felt that she has been missing you and her impression that Shreya has been happy and relieved to see him and enjoyed the treats that you have brought and further the students of Standard I being only 5 years old neither understood nor commented on any family problem and it is her impression that Shreya enjoyed being a student of Vidyodaya Matriculation Academy and access to her has always only with the permission of the school authorities and only during the lunch interval and counselling for her has been recommended because of her behaviour in class room etc. and as such, the averments of the respondent/wife in her affidavit are false which in turn is a good ground for this Court to reconsider its order passed in the main civil revision petition. However, the learned counsel for the respondent/wife contends that the letter of the school Correspondent dated 09.02.2009 addressed to the petitioner/husband cannot be relied upon as it is contrary to facts and the same has been given solely to please him and further the Correspondent is not competent or qualify to enter a judgment in regard to the mental state of the child, apart from the fact that the said letter has been issued more than a year after the child has been transferred from the said school. In effect, the letter dated 09.02.2009 of the Correspondent of the Vidyodaya Schools Society addressed to the petitioner/ husband is very much disputed on the side of the respondent /wife. In this connection, it is apt for this Court to cite the decision of Hon’ble Supreme Court in Union of India V. Paul Manickam AIR 2003 SC 4622, 4629 wherein it is held that ‘the Court will not entertain a review petition with an entirely new substratum of issues or where there is suppression of facts.’ In the decision Bahadur V. Bachai AIR 1963 All. 186 it is observed that ‘the High Court cannot set aside or recall its own decision on a review application under Order 47 of C.P.C. but it can set right the wrong committed by it in exercise of its inherent jurisdiction. The learned counsel for the respondent/wife brings it to the notice of this Court that the Delhi High Court in Krishna Bus Service (P) Ltd., V. Satvir Singh, W.P.(C).No.3275/2001 (decided on 19.03.2008) has held as follows: "Discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with the diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduced fresh documents merely to supplement evidence which might possibly have had some effect on the result."
27.Added further, the learned counsel for the respondent/wife relies on the decision of Hon’ble Supreme Court in Tamil Nadu Electricity Board V. N.Raju Reddiar (1997) 9 SCC 736 wherein it is held as follows:
"…. except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." Furthermore, in the aforesaid decision it is observed as follows:
"Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
The application is dismissed with exemplary costs of Rs.20,000 as it is an abuse of the process of Court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from the date of judgment."
28.The utmost requirement under Order 47 Rule 1 of C.P.C. is that the order of which review is sought suffers from any error apparent on the face of order and permitting the order to stand will lead to failure of justice as per decision Rajendra Kumar V. Ram Bai AIR 2003 SC 2095 (2096). No wonder, the power of review is not to be confused with the appellate power which enable the appellate Court to correct all errors of Subordinate Court. A review means the act of looking, offer something again with a view to correction or improvement and that the same is also not an appeal in disguise as per decision Lily Thomas V. Union of India AIR 2000 SC 1650 (1652). Also there cannot be a reappraisal of the entire evidence on record for finding an error. It is needless to state that if there is reappraisal, it will amount to exercise of appellate jurisdiction, which is not permissible. The learned counsel for the respondent/wife refers to the decision of Hon’ble Supreme Court in Thungabhadra Industries Limited V. The Government of Andhra Pradesh, 1965 (5) SCR 174 (186) wherein it is held that ‘a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.’ Another decision of this Court in Hindustan Photo Films Company Limited and another V. H.B. Vinobha and others AIR 1998 Madras 358 is relied on the side of the respondent/wife wherein it is held as follows: "the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, It may not be exercised on the ground that the decision was erroneous on merits since that would be the province of Court of Appeal and the same cannot be a ground for review. Where the very same objections were raised in review which were earlier raised and considered on the fact of information furnished by both sides while disposing of the writ petitions, the review applications would be liable to be dismissed."
29.In regard to the contention that the orders pertaining to custody of children are interlocutory in nature and subject to modification at any future time based on proof of change of circumstance and such change in custody ought to be established in the paramount interest of the child, the learned counsel for the petitioner refers to the decision of Hon’ble Supreme Court in Rosy Jacob V. Jacob A. Chakramakkal (1973) 1 SCC 840.
30.On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.
31.In fine, the Review Application is dismissed, leaving the parties to bear their own costs. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised. Considering the relationship of the parties and the facts and circumstances of the case, there shall be no order as to costs. 3.08.2009
Index : Yes
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sgl
To
The I Additional Judge,
Family Court, Chennai.
M.VENUGOPAL, J.

custody of foreign national child in India

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.112/2007
Dr. V. Ravi Chandran ..Petitioner
Versus
Union of India & Ors. ..Respondents
JUDGMENT
R.M. LODHA, J.
Adithya is a boy of seven, born on July 1, 2002, in the
United States of America. He is a foreign national. The petition before
us is by the father – Dr. V . Ravi Chandran–praying for a writ of
habeas corpus for the production of his minor son Adithya and for
handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order
requesting Director, Central Bureau of Investigation (CBI) to trace
minor Adithya and produce him before this Court. The necessity of
such order arose as despite efforts made by the police officers and 
officials of different states, Adithya and his mother – respondent
no. 6–Vijayasree Voora–could not be traced and their whereabouts
could not be found for more than two years since the notice was
issued by this Court. In pursuance of the order dated August 28,
2009, CBI issued look out notices on all India basis through heads of
police of States, Union Territories and Metropolitan Cities and also
alert notices through Deputy Director, Bureau of Immigration
(Immigration), Ministry of Home Affairs, New Delhi and flashed
photographs of the child Adithya and his mother Vijayasree Voora.
Ultimately with its earnest efforts, CBI traced Adithya and his mother
Vijayashree Voora in Chennai on October 24, 2009 and brought them
to Delhi and produced the child along with his mother at the
residential office of one of us (Tarun Chatterjee, J.) on October 25,
2009. On that day, the CBI authorities were directed to keep the child
under their custody and produce him before the Court on October 27,
2009. Respondent no. 6 was also directed to be produced on that
date. On October 27, 2009, the matter was adjourned for November
4, 2009 since respondent no.6 wanted to engage a lawyer and file a
counter affidavit. On November 4, 2009, matter was adjourned to
November 10, 2009 and then to November 12, 2009. The petitioner
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was permitted to meet the child for one hour on November 10, 2009
and November 12, 2009. In the meanwhile, respondent no. 6 has
filed counter affidavit in opposition to the habeas corpus petition and
petitioner has filed rejoinder affidavit to the counter affidavit filed by
respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for
the petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent no. 6. Now since minor Adithya has been produced, the
only question that remains to be considered is with regard to the
prayer made by the petitioner for handing over the custody of minor
Adithya to him with his passport.
4. But before we do that, it is necessary to notice few
material facts. Dr. V. Ravi Chandran – petitioner – is an American
citizen. He and respondent no. 6 got married on December 14, 2000
at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,
2002, Adithya was born in United States of America. In the month of
July 2003, respondent no. 6 approached the New York State
Supreme Court for divorce and dissolution of marriage. A consent
order governing the issues of custody and guardianship of minor
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Adithya was passed by the New York State Supreme Court on April
18, 2005. The Court granted joint custody of the child to the
petitioner and respondent no. 6 and it was stipulated in the order to
keep the other party informed about the whereabouts of the child.
On July 28, 2005, a Separation Agreement was entered between the
petitioner and respondent no.6 for distribution of marital property,
spouse maintenance and child support. As regards custody of the
minor son Adithya and parenting time, the petitioner and respondent
no. 6 consented to the order dated April 18, 2005. On September 8,
2005, the marriage between the petitioner and respondent no.6 was
dissolved by the New York State Supreme Court. Child custody order
dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the
petitioner and the petition for enforcement filed by him and upon the
petition for enforcement filed by respondent no.6 before the Family
Court of the State of New York, on June 18, 2007, upon the consent
of both parties, inter – alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further
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 ORDERED, that commencing during August 2007,
Adithya shall reside in Allen, Texas; and it is further
ORDERED, that the parties acknowledge that it is the intention of the parties to reside within the same community. As such, it is the mother’s current intention to relocate to Texas, within a forty (40) mile radius of the father’s residence. If the mother does relocate to a forty (40) mile radius of the father’s residence (which shall be within a twenty (20) mile radius from the child’s school),, the parties shall equally share physical custody of Adithya. The parties shall alternate physical custody on a weekly basis, with the exchange being on Friday, at the end of the School day, or at the time when school would ordinarily let out in the event that there is no school on Friday; ……………. …………………………………………………………… ……………………………………………………………
ORDERED, that in the event that the mother does not relocate within forty (40) miles from the father’s residence located in Allen, Texas (and within twenty (20) miles of Adithya’s school), the mother shall have custodial time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the school day until Monday, prior to the beginning of school, commencing during the first week of September, 2007. Such periods of custodial time shall take place within forty (40) miles from the father’s residence located in Allen, Texas. In the event that there is no school on the Friday of the mother’s weekend, she shall have custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in the event that there is no school on Monday of the mother’s custodial weekend, she shall have custodial time until 5.00 p.m. on Monday, and
B. For ten (10) consecutive days during Spring vacation from school; and
C. For the entirety of the Christmas recess from School, except for Christmas Eve and Christmas day, which shall be with the father. In the event that the school recess is prior to Christmas Eve, the mother shall have the right to have custodial time during those recessed
5

 

 days to long as she produces the child at the father’s residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother’s birthday, which is on April 25;
ii) Mother’s Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya’s birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the mother has custodial time during even -
numbered years and the father has custodial
time during odd – numbered years);
vi) New Year’s Day in alternating years (so that the mother has custodial time during even -
numbered years and the father has custodial
time during odd -numbered years) ;………… ……………..
…………………………………………………… ORDERED, that the parties shall share the
summer recess from school so that the mother has custodial time for a total of up to fifty (50) days on a schedule so that each party has custodial time for 4 consecutive weeks, with the mother’s custodial time commencing on the Monday following the final day of school……….
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until June 20; the father shall have custodial time from June 20 until June 24; the mother shall have custodial time from June 25 until July 1; the father shall have custodial time from July 1 until July 6; and the mother shall then have custodial time from July 6 until August 3 and she shall be solely responsible for transporting the child to the father’s residence in Allen, Texas on August 3. The father shall have custodial time until the commencement of school. Thereafter the father shall continue to have custodial time until such time as the mother either a) returns from India and/or begins her alternating weekly
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 schedule as set froth herein, or b) moves within 40 miles of the father’s residence in Allen, Texas and commences her custodial time during alternating weeks;………………………………
……………………………………………………. …………………………………………………….
ORDERED, that each party agrees that they
shall provide the other parent with a phone number and address where the child will be located at all time, and that the other parent shall have reasonable and regular telephone communication with the minor child; and it is further
ORDERED, that each party agrees to provide
the other party with the child’s passport during each custodial exchange of the minor child, and that each party shall sign and deliver to the other, whatever written authorization may be necessary for travel with the child within the Continental United States or abroad;"……………………………………….
6. On June 28, 2007 respondent no.6 brought minor Adithya
to India informing the petitioner that she would be residing with her
parents in Chennai. On August 08, 2007, the petitioner filed the
petition for modification (Custody) and Violation Petition (Custody)
before the Family Court of the State of New York on which a show
cause notice came to be issued to respondent no.6. On that very
day, the petitioner was granted temporary sole legal and physical
custody of Adithya and respondent no. 6 was directed to immediately
turn over the minor child and his passport to the petitioner and further
her custodial time with the minor child was suspended and it was
7

 

ordered that the issue of custody of Adithya shall be heard in the
jurisdiction of the United States Courts, specifically, the Albany
County Family Court.
7. It transpires that the Family Court of the State of New
York has issued child abuse non-bailable warrants against
respondent no.6.
8. In the backdrop of the aforenoticed facts, we have to
consider–now since the child has been produced–what should be
the appropriate order in the facts and circumstances keeping in mind
the interest of the child and the orders of the courts of the country of
which the child is a national.
9. In re B–’s Settlement,1 Chancery Division was concerned
with an application for custody by the father of an infant who had
been made a ward of court. The father was a Belgian national and
the mother a British national who took Belgian nationality on marriage
to him. The infant was born in Belgium. The mother was granted a
divorce by a judgment of the Court in Belgium, but the judgment was
reversed and the father became entitled to custody by the common
1
{1940} Ch. 54
8

 

law of Belgium. The mother, who had gone to live in England, visited
Belgium and was by arrangement given the custody of the infant for
some days. She took him to England and did not return him. The
infant had been living with mother in England for nearly two years.
The father began divorce proceedings in Belgium, and the Court
appointed him guardian. Pending the proceedings, the Court gave
him the custody and ordered the mother to return the infant within
twenty-four hours of service of the order on her. She did not return
the infant. The Correctional Court in Brussels fined her for
disobedience and sentenced her to imprisonment should the fine be
not paid. The Correctional Court also confirmed the custody order.
In the backdrop of these facts, the summons taken out by the father
that custody of the infant be given to him came up before Morton, J.
who after hearing the parties and in view of the provisions of the
Guardianship of Infants Act, 1925 observed thus:
"…At the moment my feeling is very strong that, even assuming in the father’s favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being…………………………
9

 

 In the present case the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interests of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on October 5, 1937. I think the present case differs from Nugent v. Vetzera {FN10}, the case that was before Page Wood V.-C., and it is to be observed that even in that case, and in the special circumstances of that case, the Vice-Chancellor guarded himself against anything like abdication of the control of this Court over its wards. It does not appear what the Vice-Chancellor’s view would have been if there had been evidence, for example, that it would be most detrimental to the health and well-being of the children if they were removed from England and sent to Austria…………………………………………..
……..I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country."……………… ……………… ………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council
was concerned with an appeal from the Supreme Court of Canada.
That was a case where the parents of the infant were American
2
{1951} A.C. 352
10

 

citizens. They were married in America and to whom a son was born
in California in July 1940. They separated in December 1940 and on
September 4, 1941, executed an agreement which provided,
inter- alia, that neither of them should remove the child out of the
United States without the written permission of the other. By a
judgment of December 17, 1942, in divorce proceedings before the
Superior Court of the State of California, the custody of the child was
awarded to the father. On August 1, 1945, following applications by
the father and the mother, the previous order as to custody was
modified to provide full custody of the child to the mother with right of
reasonable visitation to the father. Thereafter, and without the
consent or knowledge of the mother, the father went from the
United States of America with the child into the Province of Ontario.
The mother thereupon instituted habeas corpus proceedings in the
Supreme Court of Ontario seeking to have the child delivered to her.
Wells, J., before whom the matter came held that infant’s best
interests would be served in the custody of his father. The Court of
Appeal for Ontario dismissed the appeal preferred by the mother.
However, the Supreme Court of Canada by majority judgment
allowed the appeal of the mother and set aside the order of custody
11

 

of child to the father. On appeal from the Supreme Court of Canada
at the instance of the father, the Privy Council held as follows:
"……….For, after reaffirming "the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant", he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the court, whose jurisdiction he himself invoked, becomes "entitled as of right to have the whole question retried in our courts and to have them reach a anew and independent judgment as to what is best for the infant". and it is, in effect, because he held that the father had no such right that the judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But with great respect to the judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant’s welfare is the paramount consideration, to say that where the trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be
12

 

 so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant.
It cannot be ignored that such consequences might follow as are suggested by Cartwright, J. The disappointed parent might meet stratagem by stratagem and, taking the child into the Province of Manitoba, invoke the protection of its courts, whose duty it would then be to determine the question of custody. That is a consideration which, with others, must be weighed by the trial judge. It is not, perhaps, a consideration which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a foreign judgment must depend on the circumstances of each case. In the present case there was ample reason for the trial judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent inquiry and, in the second place, coming to a different conclusion as to what was for the infant’s benefit."……………………………..
11. The aforesaid two cases came up for consideration in
Harben vs. Harben3, wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure that a parent should not gain advantage by the use of fraud or force in relation to the kidnapping of children from the care of the other spouse, save perhaps where there is some quite overwhelming reason in the children’s interest why the status quo should not be restored by the court before deciding further issues. In the present case I am concerned with three young children, two of whom are girls and the youngest is aged only three. It is a particularly wicked thing to snatch such children from the care of a mother, and, in saying that, I have in mind not merely the mother’s position but the harm that can be done 3
{1957} 1. W.L.R. 261
13

 

 to the children. No affidavit of the husband tendering either his regrets or any vestige of excuse for his action has been proffered. Further, as I have already mentioned, when first I asked Mr. Syms what was the nature of the case which he might wish to make, if so minded, for depriving these children of a mother’s care, he only spoke of her association with a certain man and never suggested that she had in any way whatsoever failed to look after the children properly."
12. In Kernot vs. Kernot4 , the facts were thus: In May 1961,
the plaintiff mother, an Italian lady, married an English man in Italy
where both were residents. A boy was born there on March 29, 1962.
On October 19, 1963, they obtained in Italian Court a separation
order by consent providing therein that custody of the child would
remain with father, with rights of access to the mother . On October
29, 1963, the father brought the infant to England with intention to
make England his home. The mother commenced wardship
proceedings in which she brought a motion for an order that the
father return the infant to her in Italy. She also prayed for restraint
order against him from taking the infant out of her care. Buckley, J. in
these facts held thus:
"So that even where a foreign court has made an order on the merits – which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian court – that domestic court before whom the matter comes (the Ontario 4
{1965} Ch.217
14

 

 court in the case to which I have just referred, or this court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this court be to entertain the case where the foreign court has not made any order based on any investigation of the case on its merits."
13. In re H. (Infants)5, the Court of Appeal was concerned
with two American boys whose divorced parents were both citizens
of United States of America. On December 11, 1964, the Supreme
Court of New York State made a consent order directing that the
two boys whose custody had been given to the mother should be
maintained in her apartment in New York and not be removed from
a 50 miles’ radius of Peekskill without the prior written consent of
the father. However, the mother in March 1965 brought these boys
to England and bought a house for herself and children in June
1965. On June 15, 1965, the New York Court ordered the children
to be returned to New York. The mother started wardship
proceedings in the English court. The father took out motion asking
the mother that the two children should be delivered into his care,
that he should be at liberty to convey them to New York and that the
wardship of the children should be discharged. The Trial Judge held 5
(1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886
15

 

that the justice of the case required the children to be returned
without delay to the jurisdiction of the New York court, so that the
question of where and with whom they should live might be decided
as soon as possible by that court. The mother appealed to the Court
of Appeal. Willmer L.J. and Harman L.J. by their separate judgments
affirmed the view of the Trial Judge and held that the proper order
was to send these two boys back to their State of New York, where
they belong (and where the Supreme Court is already seized of their
case), and more especially so having regard to the fact that they
have been kept in flagrant contempt of New York Court’s order.
Willmer L.J. agreed with the remark of Cross J. where he said:
"The sudden and unauthorized removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view) that in a case such as the present it was not necessary to go into all the disputed questions between the parents, but that he ought to send these boys back to their own country to be dealt with by the court of their own country, provided that he was satisfied (as he was satisfied, having seen the father himself, and having had the benefit of the view expressed on behalf of the Official Solicitor) that they would come to no harm if the father took them back to the United States; and that this was so, even though it might
16

 

 subsequently turn out, after all the merits of the case had been thoroughly thrashed out in the court in New York, that it would perhaps be better after all for the boys to reside in England and see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
"…….But if he chose to take the course which the judge here took in the interests of the children , as he thought, of sending them back to the United States with no more inquiry into the matter than to ensure, so far as he could, that there was no danger to their moral or physical health in taking that course, I am of opinion that he was amply justified, and that that was the right way in which to approach the issue.
These children had been the subject of an order (it is true made by consent) made in the courts of their own country in December, 1964. It was only three months later that the mother flouted that order, deceived her own advisers and deceived the court , and brought the children here with the object of taking them right out of their father’s life and depriving him altogether of their society. The interval is so short that it seems to me that the court inevitably was bound to view the matter through those spectacles; that is to say, that the order having been made so shortly before, and there being no difference in the circumstances in the three months which had elapsed , there was no justification for the course which the mother had taken, and that she was not entitled to seek to bolster her own wrong by seeking the assistance of this court in perpetuating that position, and seeking to change the situation to the father’s disadvantage."
14. In re. L (minors)6, the Court of Appeal was
concerned with the custody of the foreign children who were
removed from foreign jurisdiction by one parent. That was a
case where a German national domiciled and resident in
Germany married an English woman. Their matrimonial home 6
(1974) 1 All ER 913
17

 

was Germany and the two children were born out of the
wedlock and brought up in Germany. The lady became
unhappy in her married life and in August, 1972, she brought
her children to England with an intention of permanently
establishing herself and the children in England. She obtained
residential employment in the school in England and the
children were accommodated at the school. The children not
having returned to Germany, the father came to England to find
them. On October 25, 1972, the mother issued an originating
summons making them wards of court. The trial judge found
that the children should be brought up by their mother and
treating the case as a `kidnapping’ class of case, approached
the matter by observing that in such a case where the children
were foreign children, who had moved in a foreign home, their
life should continue in what were their natural surroundings,
unless it appeared to the court that it would be harmful to the
children if they were returned. He concluded that in view of the
arrangements which their father could make for them, the
children would not be harmed by being returned. He,
accordingly, ordered that they be returned to Germany and that
18

 

they remain in their father’s custody until further order. The
mother appealed, contending that in every case the welfare of
the child was the first and paramount consideration and that the
welfare of the children would be best served by staying with
their mother in England. Buckley, LJ in his detailed
consideration of the matter, wherein he referred to the
aforenoticed decisions and few other decisions as well, held as
follows :
"…….Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the `kidnapper’ the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
…………………………………………………………………… ………..The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily
19

 

 resolved in the courts of that country may well be regarded as being in the best interests of the child……"
15. In re. L. (minors)6, the Court of Appeal has made a
distinction between cases, where the court considers the facts and
fully investigates the merits of a dispute, in a wardship matter in
which the welfare of the child concerned is not the only consideration
but is the first and paramount consideration, and cases where the
court do not embark on a full-scale investigation of the facts and
make a summary order for the return of a child to a foreign country
without investigating the merits. In this regard, Buckley, L.J. noticed
what was indicated by the Privy Council in McKee v. McKee2 that
there may be cases in which it is proper for a court in one jurisdiction
to make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute relating to
the care of the child on the ground that such an order is in the best
interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu and Another7 was concerned with the custody of a child–
British citizen by birth–to the parents of Indian citizens, who after
7
(1984) 3 SCC 698
20

 

their marriage settled in England. The child was removed by the
husband from the house when the wife was in the factory where she
was working and brought him to India. The wife obtained an order
under Section 41(English) Supreme Court Act, 1981 whereby the
husband was directed to handover the custody of the boy to her. The
said order was later on confirmed by the High Court in England. The
wife then came to India and filed a writ petition under Article 226 in
the High Court praying for production and custody of the child. The
High Court dismissed her writ petition against which the wife
appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)
speaking for the Court held thus :
"The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were
21

 

 incurred therein by the spouses. (See International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another8, this Court held that it was the duty of courts in all countries
to see that a parent doing wrong by removing children out of the
country does not gain any advantage by his or her wrongdoing. In
para 9 of the report, this Court considered the decision of the Court of
Appeal in re H.5 and approved the same in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural- born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the 8
(1987) 1 SCC 42
22

 

 American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para could not be traced.)]:
"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this."
18. In the case of Dhanwanti Joshi v. Madhav Unde9, this
Court was again concerned with the matter relating to removal of a
child from one country to another contrary to custody order of the
court from where the child was removed. This court considered
English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5
and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8
and observed as follows :
9
(1998) 1 SCC 112
23
 "28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was
24

 

removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child’s welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, — for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother’s
25

 

 application in India were within six months. In that context, this Court referred to H. (infants), Re which case, as pointed out by us above has been explained in L. Re as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C and the distinction between summary and elaborate inquiries as stated in L. (infants), Re are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata."
However, in view of the fact that the child had lived with his
mother in India for nearly twelve years, this Court held that it would
not exercise a summary jurisdiction to return the child to United
States of America on the ground that its removal from USA in 1984
was contrary to orders of U.S. Courts. It was also held that whenever
a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights
of the parties but on the sole and predominant criterion of what would
best serve the interest of the minor.
19. In the case of Sarita Sharma v. Sushil Sharma10, this
Court was seized with a matter where the mother had removed the
children from U.S.A. despite the order of the American Court. It was
held :
10
(2000) 3 SCC 14
26
 "6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have American citizenship and there is a possibility that in U.S.A they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them, one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights."
27

 

20. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention to the orders
of the court where the parties had set up their matrimonial home, the
court in the country to which child has been removed must first
consider the question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the matter
summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child’s
welfare be investigated in a court in his own country. Should the court
take a view that an elaborate enquiry is necessary, obviously the
court is bound to consider the welfare and happiness of the child as
the paramount consideration and go into all relevant aspects of
welfare of child including stability and security, loving and
understanding care and guidance and full development of the child’s
character, personality and talents. While doing so, the order of a
foreign court as to his custody may be given due weight; the weight
and persuasive effect of a foreign judgment must depend on the
circumstances of each case. However, in a case where the court
decides to exercise its jurisdiction summarily to return the child to his
own country, keeping in view the jurisdiction of the Court in the native
28

 

country which has the closest concern and the most intimate contact
with the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in
his own native country as that could be in the best interest of the
child. The indication given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one jurisdiction to make an
order directing that a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care of the child
on the ground that such an order is in the best interest of the child
has been explained in re. L (minors)6 and the said view has been
approved by this Court in Dhanwanti Joshi9. Similar view taken by the
Court of Appeal in re. H5 has been approved by this Court in
Elizabeth Dinshaw8.
21. Do the facts and circumstances of the present case
warrant an elaborate enquiry into the question of custody of minor
Adithya and should the parties be relegated to the said procedure
before appropriate forum in this country in this regard? In our
judgment, this is not required. Admittedly, Adithya is an American
citizen, born and brought up in United States of America. He has
spent his initial years there. The natural habitat of Adithya is in United
29

 

States of America. As a matter of fact, keeping in view the welfare
and happiness of the child and in his best interest, the parties have
obtained series of consent orders concerning his custody/parenting
rights, maintenance etc. from the competent courts of jurisdiction in
America. Initially, on April 18, 2005, a consent order governing the
issues of custody and guardianship of minor Adithya was passed by
the New York State Supreme Court whereunder the court granted
joint custody of the child to the petitioner and respondent no. 6 and it
was stipulated in the order to keep the other party informed about the
whereabouts of the child. In a separation agreement entered into
between the parties on July 28, 2005, the consent order dated April
18, 2005 regarding custody of minor son Adithya continued. In
September 8, 2005 order whereby the marriage between the
petitioner and respondent no. 6 was dissolved by the New York State
Supreme Court, again the child custody order dated April 18, 2005
was incorporated. Then the petitioner and respondent no. 6 agreed
for modification of the custody order and, accordingly, the Family
Court of the State of New York on June 18, 2007 ordered that the
parties shall share joint legal and physical custody of the minor
Adithya and, in this regard, a comprehensive arrangement in respect
30

 

of the custody of the child has been made. The fact that all orders
concerning the custody of the minor child Adithya have been passed
by American courts by consent of the parties shows that the
objections raised by respondent no. 6 in counter affidavit about
deprivation of basic rights of the child by the petitioner in the past;
failure of petitioner to give medication to the child; denial of education
to the minor child; deprivation of stable environment to the minor
child; and child abuse are hollow and without any substance. The
objection raised by the respondent no. 6 in the counter affidavit that
the American courts which passed the order/decree had no
jurisdiction and being inconsistent to Indian laws cannot be executed
in India also prima facie does not seem to have any merit since
despite the fact that the respondent no. 6 has been staying in India
for more than two years, she has not pursued any legal proceeding
for the sole custody of the minor Adithya or for declaration that the
orders passed by the American courts concerning the custody of
minor child Adithya are null and void and without jurisdiction. Rather
it transpires from the counter affidavit that initially respondent no. 6
initiated the proceedings under Guardianship and Wards Act but later
on withdrew the same. The facts and circumstances noticed above
31

 

leave no manner of doubt that merely because the child has been
brought to India by respondent no. 6, the custody issue concerning
minor child Adithya does not deserve to be gone into by the courts in
India and it would be in accord with principles of comity as well as on
facts to return the child back to the United States of America from
where he has been removed and enable the parties to establish the
case before the courts in the native State of the child, i.e. United
States of America for modification of the existing custody orders.
There is nothing on record which may even remotely suggest that it
would be harmful for the child to be returned to his native country.
22. It is true that child Adithya has been in India for almost
two years since he was removed by the mother–respondent no. 6
–contrary to the custody orders of the U.S. court passed by consent
of the parties. It is also true that one of the factors to be kept in mind
in exercise of summary jurisdiction in the interest of child is that
application for custody/return of the child is made promptly and
quickly after the child has been removed. This is so because any
delay may result in child developing roots in the country to which he
has been removed. From the counter affidavit that has been filed by
respondent no. 6, it is apparent that in last two years child Adithya did
32

 

not have education at one place. He has moved from one school to
another. He was admitted in school at Dehradun by respondent no. 6
but then removed within few months. In the month of June, 2009, the
child has been admitted in some school at Chennai. As a matter of
fact, the minor child Adithya and respondent no. 6 could not be traced
and their whereabouts could not be found for more than two years
since the notice was issued by this Court. The respondent no. 6 and
the child has been moving from one State to another. The parents of
respondent no. 6 have filed an affidavit before this Court denying any
knowledge or awareness of the whereabouts of respondent no. 6 and
minor child Adithya ever since they left in September, 2007. In these
circumstances, there has been no occasion for the child developing
roots in this country. Moreover, the present habeas corpus petition
has been filed by the petitioner promptly and without any delay, but
since the respondent no. 6 has been moving from one State to
another and her whereabouts were not known, the notice could not
be served and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would be
33

 

in the best interest of the child and also such order is justified in view
of the assurances given by the petitioner that he would bear all the
traveling expenses and make living arrangements for respondent no.
6 in the United Sates of America till the necessary orders are passed
by the competent court; that the petitioner would comply with the
custody/parenting rights as per consent order dated June 18, 2007 till
such time as the competent court in United States of America takes a
further decision; that the petitioner will request that the warrants
against respondent no. 6 be dropped; that the petitioner will not file or
pursue any criminal charges for violation by respondent no. 6 of the
consent order in the United States of America and that if any
application is filed by respondent no. 6 in the competent court in
United States of America, the petitioner shall cooperate in expeditious
hearing of such application. The petitioner has also stated that he has
obtained confirmation from Martha Hunt Elementary School, Murphy,
Texas, 75094, that minor son Adithya will be admitted to school
forthwith.
24. The learned Senior Counsel for respondent no. 6 sought
to raise an objection regarding the maintainability of habeas corpus
petition under Article 32 of the Constitution before this Court but we
34

 

are not persuaded to accept the same. Suffice it to say that in the
peculiar facts and circumstances of the case which have already
been noticed above and the order that we intend to pass, invocation
of jurisdiction of this Court under Article 32 cannot be said to be
inappropriate.
25. We record our appreciation for the work done by the
concerned officers/officials of CBI in tracing the minor child Adithya
and producing him in less than two months of the order passed by
this Court, although, the Police Officers and Officials of different
States failed in tracing the child Adithya and respondent no. 6 for
more than two years. But for the earnest efforts on the part of the CBI
authorities, it would not have been possible for this Court to hear and
decide this habeas corpus petition involving the sensitive issue
concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the
following order :
(i) The respondent no. 6 shall act as per the consent
order dated June 18, 2007 passed by the Family Court of the
State of New York till such time any further order is passed on
35

 

the petition that may be moved by the parties henceforth and,
accordingly, she will take the child Adithya of her own to the
United States of America within fifteen days from today and
report to that court.
(ii) The petitioner shall bear all the traveling expenses
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of America till further orders are passed by the
competent court.
(iii) The petitioner shall request the authorities that the
warrants against respondent no. 6 be dropped. He shall not file
or pursue any criminal charges for violation by respondent no. 6
of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and
contact number in India to the CBI authorities and also inform
them in advance the date and flight details of her departure
along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of America within fifteen
days from today, child Adithya with his passport shall be
36

 

 restored to the custody of the petitioner to be taken to United
States of America. The child will be a ward of the concerned
court that passed the consent order dated June 18, 2007. It will
be open to respondent no. 6 to move that court for a review of
the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
………………
……J (Tarun Chatterjee)
……………….
…..J
(R. M. Lodha)
……………………J
(Dr. B.S. Chauhan)
New Delhi
November 17, 2009

custody of child under section.26 of Hindu marriage act,1955

Child custody in Divorce proceeding under sec.26 of Hindu marriage act.
Prabhati Mitra vs D.K. Mitra on 17 January, 1984
Equivalent citations: 25 (1984) DLT 186
Author: A B Robatgi
Bench: A B Rohatgi
JUDGMENT
Avadh Behari Robatgi, J.
(1) This unfortunate matter arises out of matrimonial differences. A girl of 14 and a boy of 11 are living with their mother. Their is a contest between the parents as to which should have their care and custody. Each is attacking the other. The guardian judge has decided that the minors should be transferred to the father’s control. From that order mother appeals to this court.
(2) The appellant, Smt. Prabhati Mitra, is the mother of the children. The respondent, Shri D.K. Mitra, is their father. Their marriage was dissolved by a decree of divorce passed by this court on 21.5.82. There are two children of the marriage. A daughter Sofia alias Bipasha, a girl 14 years of age. She was reading in 8th class in Lady Irwyn School. The other is a son. Raja alias Tanmoy, a boy 11 years of age. He was studying in 5th class in Frank Anthony School.
(3) Unfortunately the marriage of the parties came to grief. The mother left the house on 22.3.1980. On 25.7.1980 she made an application under section 25 of the Guardian and Wards Act for the custody of the two minor children. The father opposed. The application was dismissed for want of prosecution on 24.8.1982.
(4) On 24.5.1983 the mother went to the house of the father and met the children in his absence. They narrated their tale of woe to her. Moved by the story of their maltreatment and neglect, she brought them with her without obtaining any orders of the court. On 30th. May, 1983 she made an application to the Guardian Judge staling that when she went to see the children at the house of their father, they started weeping and insisted that she should take them with her as they were not happy in the father’s house, She found it unbearably distressing to lew them behind. So the children accompanied her to her house. At present they are with the mother. She produced the children before the judge. They told the judge that they would like to live with the mother. The court allowed her custody of the children till an application is moved by the father.
(5) It appears that the father had gone out of India during those days. When he returned he did not find the children at home. He immediately made an application under section 151, Code of Civil Procedure statling that the children bad been removed from his custody forcibly and that it is not in the interest of the children to live with their mother. He sought the custody of the minors. By his order dated 21st July, 1983 the Guardian Judge decided this application in favor of the father. He made an order to the mother to hand over the custody of both the children to the father “forthwith”.
(6) The learned judge held that “the mother took the law in her own hands and removed the children from the custody of the father in his absence and such a course adopted by the mother cannot have any legal sanction.” He was of the view that “the custody of the children with the mother is absolutely illegal”. From this order granting custody to the father, the mother appeals to this court.
(7) It appears to me that the learned judge did not decide the case on merits. He mainly held that the wife had kidnapped the children from the legal custody of the father who was not unfit to retain their custody and therefore the children must be restored to the custody of the father. That is why at the end of his judgment he observed that it was open to the mother to claim custody and “she can apply afresh for obtaining custody of the children under the provisions of Guardians and Wards Act” or by reviving the earlier proceedings she had launched in 1980.
(8) In the very beginning when I started hearing the appeal I told counsel for both parties that I will decide the case on merits and they can adduce such evidence before me as they thought proper. The parties have given evidence by affidavits. I have heard arguments at length. Written arguments have also been submitted by both parties.
(9) In my opinion the learned judge erred in concluding that he should make a peremptory order for the children’s return to the father. He should have heard the case on its merits. It is true that the parents ought to be discouraged from taking the law into their own hands. The courts must set their face against kidnapping. If a child is in the mother’s care and the father takes it away against her will, the proper course usually will be to restore it to her forthwith in the absence of any evidence that this is likely to harm the child. But the courts are now more anxious to consider the case on its merits. The courts are becoming increasingly reluctant to make peremptory orders and are now much readier to consider the merits. This appears to be the view of Supreme Court in Dr. Mrs. Veena Kapoor v. Varender Kapoor, . The Punjab High Court had dismissed the mother’s
petition for habeas corpus on the narrow ground that the custody of the child with the father was not illegal. The Supreme Court remitted the case to the High Court to take evidence and to consider the questions as to whether it was in the interest of the minor that its custody should be handed over to the mother, after taking into consideration all the circumstances of the case. This new attitude to the question of custody suggests that I should investigate the merits of the rival claims of the parties and for this purpose I embarked on an inquiry after taking affidavit evidence.
(10) This was not a case of kidnapping, as the Judge thought. The mother informed the Nizamuddin Police Station about the fact of removal of children on that very day i.e. 24.5.1983. She produced them before the judge. She brought their distressing condition to his notice. He allowed the mother to retain custody. But the course adopted by the learned judge means initially moving the children from father to mother, then from mother to father by his order, and possibly from father to mother if the wife did as advised by the judge. So the children will virtually become playthings in the parental warfare. Like a rolling stone they will have no stability of home.
(11) “THE controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents.” (Rosy Jacob v. Jacob, ). It is well
settled that “in the matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.” (Veena Kapoor v. Varender Kapoor (supra) ).
(12) This is the paramount consideration. Other considerations must be subordinate. The mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child and can be effective only if it coincides with the welfare of the child. Consequently, it cannot be correct to talk of the pre-eminent position of parents, or of their exclusive right to the custody of their children, when the future welfare of those children is being considered by the court. What does this paramountcy of welfare means ? In the words of Lord Macdermott in J. v. C. (1970) Ac 668, 710 :
“(THESEwords) must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they can note a process whereby, when all the relevant facts, relationships, claims and wishes of parents. risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the Child’s welfare as that term has now to be understood. That is the first consideration because it is of the first importance and the paramount consideration because it rules upon or determines the course to be followed.”
(13) The crux of the case is that father and the mother have now been divorced. They were married in 1968. Out of the wedlock these two children were born. Sofia was born on 22nd December, 1969. Raja was born on 23rd August, 1973. Later on their marital relations became estranged. The wife petitioned for divorce on the ground of her husband’s cruelty under section 13(1)(ia) of the Hindu Marriage Act. The Additional District Judge dismissed the petition. On appeal Goswani J. allowed the appeal of the wife holding the husband to be guilty of cruelty. He granted a decree of divorce in favor of the present appellant against the respondent. The custody proceedings are the outcome of this divorce litigation. One important fact which has to be constantly borne in mind is that after divorce the father remarried on 15.9.1982. The mother remains unmarried. She says that she does not intend to remarry.
(14) Of the problems resulting from the dissolution of marriage none is more serious than that of trying to ensure the future well being of the children. The size of the problem has assumed such an enormous proportion that each year thousands of children are affected by the divorce of their parents. While it is a general principle of law that in proceedings relating to the custody and upbringing of a child, the child’s welfare is the first and foremost consideration, it is often the case-and should be openly admitted-that in divorce proceedings the welfare of the children of the marriage is in direct conflict with the desire- and the legal right-of one or both of the parents divorced. The very institution of divorce proceedings bodes ill for the children of the marriage. When the marriage breaks down their custody becomes the subject of a court order.
(15) In the forefront of his arguments counsel for the father said that the mother is living in adultery with one Mr. Vashisht and she is therefore disentitled to the custody of the children by reason of her moral character. For this he relies on the observations of Goswami J. in Prabhati Mitra v. D.K. Mitra. 1982 Hindu Law Reporter 397, 407.. What was argued before Goswami J. was that the wife had some sort of relationship with Mr. Vashisht. The wife denied this. The husband objected to the visits of Mr. Vashisht to their house. As a result there were quarrels between the husband and wife. The learned judge observed “in these circumstances, I feel that the learned trial judge was right in drawing the inference that the allegations of the respondent regarding the relationship of the petitioner and Mr. Vashisht were not without foundation or reckless and as such the said allegations cannot be termed as an act of cruelty”. The learned judge was only concerned with the question whether the husband was cruel to the wife when he objected to the visits of Mr. Vashisht to the house. This point he decided in favor of the husband and held that on this count he was not cruel because his objection was not without foundation. I cannot read it as a positive finding of adultery against the wife. The wife alleged that Mr. Vashisht was like a brother to her. But she did not produce him in court. So it was held that the husband was not cruel to the wife when he objected to Vashisht’s visits, whether frequent or spasmodic, and if as a result there were “unpleasant incidents” between the parties.
(16) The first and foremost consideration is the welfare of the minor. The rights and wishes of parents must be assessed and weighed in their bearing on the. welfare ofthe child in conjunction with all other factors relative to that issue. The mother’s custody is preferred not because she has a paramount claim against other relations but because of the care and supervision that a mother who is not out at work can give to young children is a very important factor. The court may see the child privately and ascertain the wishes of a child if it is grown up. I talked to the children in my chamber twice-once on September 7, 1983 and a second time on October 13, 1983. They showed me their school record, their progress record and fee books. Both of them are studying in a good public school. They told me clearly and unambiguously that they were not willing to go to their father under any circumstances because they had been ill treated by their step mother. They complained of maltreatment by the stepmother and neglect by the father. They told me that they were given raw potatoes and onion to eat. They were not sent to school in clean and properly pressed school dress. They said that their stepmother in Calcutta threatened to drown them into sea if they did not leave her house.
(17) At this stage I must mention that the learned trial judge also had a private interview with the children. His impression was, however, different. He was of the view that the children had been “tutored” and “coaxed” to speak against their father so much so that they were not willing to talk to him. The children told the judge that their father will beat them for going away with their mother in his absence, To this the judge said :
“To my mind this apprehension in the “minds of the children has been created by continuous poisoning from the side of the mother.”
From my talk with the children I did not have the impression that they had been tutored. They talked to me freely. As normal children, they seemed to me very happy with their mother. This was the dominant impression they left on my mind.
(18) It was said that the Father is employed in Trade Fair Authority on a decent salary, that he can give better education to the children, that they can be respectably brought up if custody is given to him. The fact that one claiment to the custody is in a position to give the child a better start in life than another does not give him a prior claim. It is the happiness of the child, not its material prospects, with which the court is concerned, and any other rule would automatically put a poor parent at a disadvantage. Obviously, however, a party’s financial position cannot be ignored entirely, e.g. if he is so poor that he cannot provide home for his children, this in itself might be enough to refuse him actual custody. But again the quality of the home life that the child will have must not be measured in purely material terms : the amount of time and energy that a parent can devote to its care and upbringing is of considerable importance. This may mean that a mother who can spend the whole of her time with her children will necessarily have an advantage over the father who will be out at work all day, whatever alternative arrangements he can make to have them looked after. (See Re. K 1977 (1) All E.R. 647). Here the position is complicated by the fact that the father has remarried. Giving custody to the father will amount to giving custody to the stepmother. From the stepmother the children had maltreatment. From the father neglect. This was the experience of the past. The affidavits filed on behalf of-the mother and the children’s report to me in private show that this was the state of things. It will be harsh to the children to repeat the old experiment. In the fact and circumstances of this case the husband is disentitled to the custody of the children. He has remarried. The new partner he has taken will care more for the children whom they bring into this world. Human nature is the same the world over.
(19) There is an affidavit by the stepmother as to her willingness and intention to look after the children and be a mother to them. I do not think a stepmother, however anxious to do her best for the children, can take the place of the mother. The mother is more likely to give the attention to the children that they need at this formative stage than a stepmother who, however anxious to perform her duties, will naturally be more interested to the needs of a child who is her own child. The order of the judge gives the custody to the father. So the mother is deprived of the care and control of the children. The children, too, are deprived of their mother’s care. They will have the opportunity of a stepmother to care, but that is not always the same thing. Above all the children are not prepared to live with the stepmother.
applied the welfare principle and held that the mother, a muslim woman, and a singing girl by profession, was entitled to the custody of her minor illegitimate daughter of 6 years which was in the custody of her mother’s sister. No matter who her father is, the Supreme Court said, the mother is entitled to the custody of the illegitimate daughter. The interest of the child will be better served if she is in the custody of the mother rather than her mother’s sister, the court said.
(21) In Saraswatibai Ved v. Shripad Ved, Air 1941 Bombay 103 Beaumont Cj said:
“however the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world ever, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an “adequate subsitute for her for the custody of a child of tender years.”
He further observed:
“The modern view of the judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother.— The mother’s position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband.”
Wadia J. said:
“c of the minor has married again. That in itself may not be a ground for depriving him of the custody of bids minor child. But the court has got to consider all the circumstances of the case, and taking human nature as the same here as elsewhere, a stepmother cannot be expected to be very much interested in the welfare of a minor stepson, nor likely to give him the attention, love and sympathy which the child naturally reqauires.”
(22) The courts in this country took this view in 1941. Now we have advanced much further. The position of women in society is much improved today. The modern trend is well represented by the Supreme Court decision in Gohar Begum where the mother, a singing girl, was held to be entitled to the custody of her illegitimate daughter. Regardless of the question who the father is, the court held that mother is preferable to any other near relation.
(23) In Balram Mandal v. Rajani Mandalain, the boy
was illtreated by the stepmother. The court said that if the boy is kept under the guardianship of the father, for all practical purposes, the stepmother will have full control over the boy. The court held that the natural mother was a better guardian than the stepmother.
(24) In Munnibai v. Dhanush, the father after divorce had remarried. The court held that there was probability of the minor child being neglected by the stepmother. It was held that the mother was entitled to the custody of the child as she had stated that she had no intention to marry again. The claim of the natural mother was preferred to the claim of the father in the matter of custody.
(25) The marriage of the parties has been dissolved by a decree of divorce. This is the most important factor in this case. After divorce the question of custody, control and maintenance of the minor children of the marriage has now arisen. Section 26 of the Hindu Marriage Act provides for the custody of the children:
“26.In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and . education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.”
(26) The wife ought to have petitioned under this section. This is the proper provision applicable to a broken home. All orders relating to “custody, maintenance, and education” of minor children are to be made “from time to time” and may be varied, suspended or discharged. They all automatically come to an end on the child’s 18th birthday when he attains majority.
(27) The court can make provision “in the decree” and “after the decree”, and from “time to time”. The legislature has given full elasticity in the exercise of the court’s power and it would be unwise to restrict this elasticity. So flexible are the powers of the judge. In effect the legislature is saying: “In such cases trust the judge.” This flexibility is its greatest advantage. In ordinary circumstances no final order is ever made. “From time to time” it can be varied, suspended or superseded.
(28) The mother and father are fighting about the custody of the minor children. The court has to make such provisions-now that the decree of divorce has been passed-”as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.” If parents are divorced, arrangements have to be made about the children’s upbringing. With whom are the children to live ? Who is to be empowered to take major decisions about their upbringing, for example, about their education ? If the children have their home with one parent, what arrangements are to be made to allow the other to preserve the relationship with them by visits, holidays and so on ? Who is to provide financially for the children ? These difficult questions arise.
(29) Where custody is contested between the parties, as here, other difficulties arise. Each of them is anxious to have custody, but it is open to question whether the contest always indicates that the parties are moved solely or even primarily by the desire to safeguard the children’s interests. Passions are aroused in divorce and judgments distorted. One party may contest other’s claim to custody from spiteful or selfish motives. The children are then in danger of becoming pawns in the struggle of wills. This case vividly illustrates it. In circumstances of this kind, the judge in deciding custody is in the end forced back to the test of welfare of the children. He strives to make the best arrangement which he can devise for the children in the new situation created by the dissolution of the marriage. The law is now infinitely more complex, largely because the welfare of the children has become a major concern of public policy transcending the “rights” of individual parents. This means more than that the courts will not enforce parental rights if to do so would not serve the children’s interest. The legislature has given wide powers to the court to look after the welfare of the children. This indeed is one of the most difficult problems in family law.
(30) In the broadest sense, custody meant the sum total of the rights which a parent could exercise over his child. These rights continue until the child attains the age of 18. Over the years the father’s primacy was reduced in three ways. First the Court in exercise of their paternal jurisdiction might interfere to deprive the father of some or all of his rights. This is the theory of Guardian and Wards Act 1890. Secondly, section 26 of the Hindu Marriage Act, 1955 has made the mother’s rights equal to those of the father. Thirdly, the courts have attached increasing importance to the welfare of the child rather than the rights of the parents. The paramount consideration in case of disputes between the father and the mother is the welfare of the child. Section 26 says that provision has to be made consistently with the wishes of the minors wherever possible. This shows that the court may disregard the rights of a parent if it finds that by having regard to their wishes it will be promoting the welfare of the children. The parent’s rights can be suspended and superseded where it is shown that to do so will be in the interest of the minor. This is the key-note of the law relating to the exercise of parental rights and gowers, as it has developed over the centuries culminating in the Hindu Marriage Act, 1955. Earlier cases indicate that effect will always be given to father’s legal rights unless he had forfeited them by moral or cruel conduct or was seeking to enforce them capriciously or arbitrarily. The parental rights are on the decline. The welfare theory is on the ascendant.
(31) In this age of equality of sexes the effect of legislation and judge-made law is to whittle down the father’s rights and also to give the mother positive rights to custody which in earlier days the law did not accord to her. In the cascade of legislation passed in the fifties of this century e.g. The Hindu Marriage Act 1955, the Hinnu Minority and Guardianship Act 1956, the Mindu Adoptions and Maintenance Act 1956, the legislature has touched upon the subject of welfare and protection of children from many angles. The new Guardianship Act of 1956 is in addition to and not in derogation of the Guardians and Wards Act 1893. The father’s pre-eminent position as the patria potestas or head of the family who demanded unquestioned obedience to his commands simply does not obtain today. It is the children’s interest which predominates. The legislation, old and new, is characterised by the golden thread which runs through it, which is that the welfare of the child is considered first, last and all the time.
(32) The “welfare principle” is the proper test to be applied in cases of disputes between the parents and is now universally accepted as applicable in all courts dealing with this issue, whether it is matrimonial jurisdiction or guardianship jurisdiction. The welfare of a child is not to be measured by money alone, nor by physical comfort only. It must beread in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do.
(33) The conduct of the parents in relation to the child is obviously relevant in determining what is in his best interest. The parents’ conduct towards each other may also be relevant if it reveals personality, or behavior problems which might adversely affect the child. But is matrimonial mis- conduct and responsibility for the breakdown of the parents’ marriage “as district from conduct towards the child” to be taken into account in deciding custody issues? There has been a remarkable change of judicial policy on this issue in England. It was for long a settled rule of the divorce court that a mother who had been guilty of adultery should be deprived of care and control. It then came to be recognised that an adulterous mother could nevertheless be a good mother. (Willoughby v. Willoughby 1951 Probate J 84). Singleton L.J. said : “I have yet to learn that the fact that a woman commits adultery prevents her in all circumstances from being a good mother” (p. 192). In some cases even the conduct of the parent was a relevant factor. If one of the spouses was an innocent party it was thought that he was entitled to the custody. But even this is no longer accepted as a universal principle. It all depends on the facts of a particular case. Any attempt to formulate general pronoucements applicable in all cases will be likely to create more difficulties than it solves. What the court has to deal with is the lives of human beings and these cannot be regulated by formulae.
(34) Take the present case. The husband was held to have treated his wife with cruelty. He was the breaker of the home. His cruel conduct sounded the death knell of the marriage. No one can possibly be proud of that.
(35) On the facts of this case it appears to me that the mother is entitled to the custody of the children. The daughter Sophia is a young girl of 14 years. The mother can be relied upon to give that wise counsel and sure guidance that are so necessary to a young girl growing up and maturing through adolescence into a womanhood. As regards the son it will not be in their interest if brother and sister are separated. They have grown up together. The substitute care which the father can provide cannot outweigh the risks of separating these two children from their mother. Their interests will suffer if they are brought up in the home we of the stepmother. On the facts welfare of the children-this girl of 14 and a boy of 11-admits of no other solution.
(36) In practice, as the cases show, the mother now has a built-in-advantage in disputes over the care and control of young children since it will normally be difficult for a father to provide adequate material care for them. In any case the courts have been heavily influenced by the view that a mother’s care is necessary for the child’s proper psychological development. Hence a mother is likely to be given care and control because she is thought “not as a matter of law, but in the ordinary course of nature the right person to have charge of young children.” (Re : K (minors), 1977 I All E, 647, 655 per Sir John Pennycuick ; Rosy Jacob v. Jacob, and Raj
Rani v. Subhash Chander, 23 (1983) Delhi Law Times 240 (DB).
(37) Much capital was sought to be made of the observations of Goswami J. in relation to the wife’s character and conduct, that is visits of Vashist to the matrimonial home and the husband’s protests with regard thereto. It was said that the wife is disqualified from claiming custody of the children on this ground. According to this view if the husband is morally blameless in relation to the breakup of marriage he ought to be given the custody. I do not agree, If the father, however innocent he may be, cannot provide the necessary physical and emotional environment, nothing can derogate from the court’s duty to provide the solution which is for the child’s welfare. The child’s welfare has become the only factor to be taken into account and everything else is subordinate to it. In the end the judge has this single decision to made, namely, what is best for the welfare of the child ?
(38) Applying these principles it appears to me that there is no reason at all why the mother ought not to have the custody, care and control of the children. They are devoted to her and she is attached to them. The husband has remarried. The new partner he has taken will have her own children. The father had one child from the second marriage. But unfortunately he has died. Remarriage is a factor which has to be taken into account. If on that ground the husband is disqualified the natural mother must be given the custody. In many cases this must inevitably happen when a home is broken. To grant custody to the father would only lead to further unhappiness. The guardian judge has failed to give enough weight to the loving relationship between the mother and the children who are now grown up. Nor has he given due weight to the second marriage of the husband. The judge seems to me to have repeated one of the myths that the court has been trying to explode for many years. In the judgment he says:
“The mother has not absolved herself of the charge of adultery against her and rather thought not fit to contest the charge. Such conduct disentitles her from claiming the custody of the children.”
He thought that the observations of Goswami, J. “reflect upon the way of life which the mother is leading at the moment and if the children are allowed to be in her company it may have adverse affect on their moral as well as physical growth.” I cannot accept this view. Goswami, J. has not found that the mother is living in adultery. He was concerned only with the question of cruelty. He found that the husband was not cruel when Vashist visited his house and he protested. To say that this is a finding of adultery against the wife will be doing the grossest injustice to her. V/e live in a tolerant society. Adultery has to be put in issue and proved like a quasi-criminal offence. So the basis of the judge’s order giving custody to the father was, in my view, unsound. He made a wrong decision. Founding himself on a narrow conception of moral welfare, he gave too little weight to the factors favorable and too much weight to the factors adverse to the mother’s claim that she should retain care and control of the children. It is the duty of the appellate court to set aside the decision if it is satisfied that it is wrong. On the view I take the Judge’s error was in the balancing exercise. Every case of custody involves a balancing exercise. It involves choices and risks.
(39) The relations between the parties are embittered. They are fighting in court, as I saw each of them, with inflamed passions. They are on the worst of terms. A state of acute hostility prevails between them. This sharpness of conflict between parents has made my task difficult. Even though the divorce proceedings have ended, the bitterness and mutual recrimination continue. There were allegations, counter-allegations, and mutual suspicions. The wife complained that the husband is following her everywhere to see that she is thrown out of employment by the employer and out of the house where she is living by the landlord. She showed me letters which, according to her, he had written under anonymous names to her employers and others describing her as a call girl and a smuggler. The husband denied this. I have not gone into the truth of these allegations, because that was not the scope of the proceedings. But what I have found is that there are unending accusations of one against the other even now that they are divorced,
(40) I have borne in mind throughout the children’s welfare is the first and paramount consideration. I am convinced that it is in the children’s interest to stay with their mother. To take them away from her would not only be wrong from their point of view, it would also, in my judgment, be a grave injustice to the mother. As I see, these proceedings are in fact a continuation of divorce proceedings which took place before Goswami J. I have, therefore, to keep in mind the characters and personalities of the claimants, before and after divorce, their rights and wrongs, their conduct and behavior, their quarrels, shoutings and unkindnesses.
(41) Under section 26 the court is enjoined to make a provision for the minor children “consistently with their wishes wherever possible”. I have met these two children twice in my chamber and talked to them in private. Although the court cannot allow a young person of 14 to decide entirely for herself, the fact that she did at the moment have a very positive view cannot be ignored as a most important factor in the case. I cannot ignore the close relationship of the mother and the daughter. It appears to me that she is a caring and a loving mother. The children have attained the age of the discretion. One is 14 and the other is 11. They can make an intelligent preference. The girl will soon be on her own.
(42) Custody means physical possession. It means a bundle of rights or to be more exact a bundle of powers which continue until the child attains the age of 18 years. But as Lord Denning has pointed out :
“custordy is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is, It starts with a right of control and ends with little more than advice.”
( Hewer v. Bryant, 1970 (1) Q.B. 357, 369).
(43) One other thing remains to be said. The wife is educated. She is a teacher. She was employed in a women’s organisation. She produced her salary certificate. She earns from tuitions also. She can look after the education of the children. The husband’s case is that the education of the children has suffered. They were removed from their previous schools, it is true. The girl was removed from Lady Irwin School and the boy from Frank Anthony Public School. I was at pains to ascertain whether they are being sent to a good school now. I found that they are reading in a good public school. I saw their progress report and their fee book. The mother has put them in a good school with whatever means she has. But she was not willing to disclose the name of the school in open court because she feared that the husband will remove them from the school. This will add to her difficulties, she said. She has asked me not to disclose the name of the school in my judgment.
(44) The question is whether the court is bound to disclose the name of the school to the father. He is very much insistent. In my opinion, I am not bound to disclose it to him in view of embittered relations between the parties and the vilification campaign which he is carrying on against his previous wife, as was alleged by the appellant. The inherent jurisdiction of the court is derived from the crown’s prerogative power as parens patriae. The theory is that court is the guardian of all the infants in the realm. This invests the proceedings with a somewhat unusual character. Inasmuch as there is a justiciable issue between the parties the court is normally exercising a judicial function, but as its first duty is to protect the child irrespective of parents’ wishes, its jurisdiction is also administrative. The House of Lords concluded in Official Solicitor v.K ((1965) Appeal Cases 201) that this entitled it to depart from the normal rules of evidence if this is necessary in the child’s interest. It has always been accepted that the judge is entitled to see the child and each of the parents in private. In Official Solicitor v. K (supra) it was held that the judge may receive a confidential report from the child’s guardian ad litem without disclosing it to the parties if he considers that disclosure would be detrimental to the child.
(45) Where the paramount purpose is the welfare of the minor, the procedure and rules of evidence should serve and certainly not thwart that purpose. The judge can hold proceedings in camera. He can see the children privately in his room when dealing with these cases. He can see each parent separately. This is left co judge’s discretion. In the last resort the welfare of the child must dominate. Everything else is subordinate. This is the essence of the matter. (See Scott v. Scott, (1913) Ac 417, 437). No one disputes that this practice is free from objection or that these interviews are confidential. (In re A” at p. 235). As has been said :
“A principle of judicial enquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of principle of this sort does not serve the ends of justice, it must be dismissed otherwise it would become the master instead of the servant of justice.”
(In re K p. 238 per Lord Devlin).
(46) This is an unusual step, no doubt. But this is necessitated by the exceptional circumstances of this case where I have found that the parties even after divorce have taken to the path of unending accusations and recriminations.
(47) PARENTS’ pre and post-divorce behavior has induced me to take this unusual step. Apart from this it must be remembered that the wardship jurisdiction of the court is not ousted or abrogated. The wardship litigation is very different from other litigation. It is not an ordinary lis. In the words of Lord Cross :
“clearly a wardship case differs altogether from ordinary litigation. In an ordinary action the court has before it two parties, each of whom asserts that he has a legal right to a decision in his favor. The function of the judge is to act as umpire at the fight and to decide which side has won. In a wardship case the court is asked to take the child into its care and to decide how and with whom it is best for the child to be brought up. The role of the parties is to simply put before the judge for his consideration their suggestions with regards to the ward’s upbringing.”
( 83 (1967) Lqr p. 200, 207).
(48) It is right at this stage to say that in order to be satisfied myself whether the children were reading in some school I asked the Registrar to verify the fact from the school named by the children in my private interview with them. He has informed me that the children are actually reading in a public school, as deposed by the mother in her affidavit. The daughter is in 8th class and the boy is in 5th class.
(49) To summarise: I rest my judgment on the broad ground that the mother is entitled to the custody of the children ; and there is nothing in her conduct, her character, or her present position to induce any court to take away her children from her. I do not want to take the risk of sending the children back to the father who has remarried. That will produce a rankling sense of injustice and depression in them which will not only hinder their development, but can easily prejudice their whole future. My choice is for the mother.
(50) The welfare test is the ultimate criterion. It is the governing consideration. Between 1890 and 1955 the whole social attitude towards parents and children had changed and the law has continued to develop and will develop by reflecting the changing times, trends and tendencies. Gone are the days of the pater familias. Gone are the days of the absolute right of the father to the custody of his child. The change in the climate of social conditions has taken place gradually and its influence on the courts has been quite perceptible. The tide began to turn against the power and authority of the father. Under the impact of changing social conditions and the weight of opinion the Hindu Marriage Act was passed in 1955. Section 26 is directed to equalise the legal rights or claims of the parents, and seeks to achieve an equality between the sexes in relation to custody of minors. This is a statutory provision which is almost refreshing in its clarity. The section means what it says-no more and no less : if on a consideration of all the circumstances the judge considers that the paramount welfare of the minor demands a particular arrangement as being the proper one he shall make that arrangement. The stepmother has lodged an affidavit that she will act as the mother of the children. I think she cannot take the place of the mother. The mother has layers of love for her children. She can wipe the tear of every eye.
(51) The judge is required to give sympathetic consideration to the wishes of the minor if he is of an age fit enough to express an opinion. The court has the duty to consider the application on its merits before it. It must take into account all the merits and demerits of the alternative proposals as they seem likely to bear upon the child’s welfare. In the end it must adopt the course most calculated to promote the welfare of the child. There is nothing permanent about the order relating to custody; it can be varied at any time.
(52) The more modern approach to the question of custody is represented by Gohar Begum’s case. The modern feeling in these matters is that ties of affection ought not to be disregarded. Ved v. Ved be Beaumont Cj illustrates it. The equality of parents is much more pronounced in the Hindu Marriage Act. The authorities are not always consistent and the way along which they have moved towards a broader discretion had many twists and turns. No useful purpose will be served by a copious citation of authority. The Hindu Guardianship Act, 1956 has also put the rights of the mother on an equality with those ‘of the father in relation to the custody of minors, and the tide has run more strongly against the father as the cases show.
(53) A child’s future happiness and sense of security are always important factors. On the whole facts of this easel have come to the conclusion that the children should remain with the mother and the change of custody will prove detrimental to their interests. I am also of opinion that the aspersion cast on the character of the mother is without any substance. She has not forfeited her right to custody in any manner.
(54) For these reasons the order of the Guardian Judge dated 21.7.1983 is set aside. The appeal is allowed. The custody of the children will remain with their mother, until further orders. The parties are left to bear their own costs.

custody of child under section 26 of Hindu Marriage act,1955.

 
custody of child under section 26 of Hindu Marriage act,1955.
 
Arun Lata vs Civil Judge And Ors. 
Equivalent citations: AIR 1998 All 29, II (1997) DMC 383
Author: D Seth
Bench: D Seth
ORDER
D.K. Seth, J.
1. An application for vacating the stay order was filed on behalf of opposite party No. 2. The said application was listed for orders on 20th March 1997. Mr. Govind Krishna, learned counsel for the opposite party, took a preliminary objection. He contended that under Section 28 of the Hindu Marriage Act, an appeal lies against the impugned order before the learned District Judge. Therefore, the writ petition is not maintainable. Mr. A. Kumar, appearing on behalf of the petitioner, disputed the said contention on various grounds. Since the hearing could not be completed the matter was adjourned till 9th of April 1997. On the next date, it was further adjourned till 12th May 1997. On 25th April 1997, both the learned counsel pointed out that the matter was fixed on 24th April, 1997 but by mistake the date was noted as 12th May, 1997 in the order dated 9th April, 1997. Accordingly the matter was fixed on 9th May, 1997 instead of 12th May, 1997 by an order dated 25th April, i 997 by the consent of the parties for the reasons recorded in the order dated 25th April, 1997.
2. On 9th May 1997, an application for amendment was tiled in the Court by Mr. A. Kumar, copy of the said application was served upon Mr. Govind Krishna on 24th April, 1997. Mr. Govind Krishna insisted that by reason of the interim order, the opposite party No. 2 has been suffering great prejudice. Therefore, the application for amendment may be taken up for hearing immediately. He submitted that in view of the statements made in the application for amendment which is a belated one, he does not propose to file any counter affidavit to the said application for amendment. However, he would contest the same on merit and the opposite party No. 2 does not admit any of the statements made in the said application for amendment. Mr. Govind Krishna also proposed that right from 20th March, 1997, he was insisting upon disposal of the whole matter since the writ petition is not maintainable. Therefore, he is prepared to argue on the merit of the case along with his contention in opposition to the application for amendment. Therefore, the whole matter may be heard and the same may be finally disposed of. Mr. A. Kumar agree to the proposition. By the consent of the parties, the whole matter is taken up for hearing along with the application for amendment. Both the learned counsel addressed extensively on the merits of the case in support of their respective contentions while supporting and opposing the application for amendment. The question of disposal of the application for amendment also depended, as argued by both the counsel, on the merits of the case. The question was so intricate and involved the whole dispute it was necessary to refer to the merits of the case as well. For the sake of convenience and proper understanding of the dispute, the Court had agreed to the proposal suggested by both the learned counsel as above and treats the matter with the consent of the parties as on day’s list for hearing together with the application for amendment and the application for vacating the interim order.
3. Since the facts are a little elaborate and appears to be on the marginal line of complicated one, reference to the facts would help us in grasping the emerging situation. The facts are not disputed by the learned counsel appearing on behalf of the parties. The admitted facts, as emerges from the record, are as folllows.
4. The opposite party No. 2 Arvind Kumar and the petitioner Arun Lata were married on 4th May, 1980. Arvind Kumar is a lawyer practising at Bulandshahr. He instituted a suit for divorce being Divorce petition No. 208 of 1981 in the Court of Civil Judge, Bulandshahr on 23rd July, 1981. A child out of the wedlock was born on 15th March, 1982. The suit for Divorce was decreed ex parte on 5th May, 1982 (Annexure ’1′). In the said suit, no interim order was passed with regard to the custody or maintenance of the child. Neither any provision with regard thereto was incorporated in the decree. On 23rd May, 1994, Arvind Kumar filed an application under the Guardians and Wards Act for the custody of the child. The same was registered as Misc. Case No. 22 of 1984. Arvind Kumar had also filed Case No. 440 of 1984 for certain other reliefs against Prakash Rani and others including Arun Lata before the Special Judicial Magistrate, Bulandshahr. At this stage, Arun Lata sought for transfer of respective cases from Bulandshahr to Delhi, on which the Hon’ble Supreme Court was pleased to issue notice on Arvind by an order dated 11th July, 1984 (Annexure ’2′). By an order dated 20th February, 1985 (Annexure ’3′), the Transfer Petition was disposed of. In the said order, it was recorded that both the parties had agreed that all the cases filed by them against each other would forthwith be withdrawn and that Arvind Kumar will pay Rs. 200/- per month regularly for maintenance of their only son with effect from March 1, 1985. Accordingly the parties had undertaken to withdraw all the cases. In terms of the said order dated 20th February 1985 both case No. 440 of 1984 and Misc. No. 22 of 1984 were withdrawn by Arvind Kumar.
5. Subsequently on 30th September, .1991, Arvind Kumar filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act against Arun Lata for the custody of the said child. And 20th October, 1991 was the date fixed in the said Case No. 200 of 1991. She sent a telegram on 21st October 1991 (Annexures ’4′ and”5′)intimating the Court that she had fallen ill and, therefore, the case may be adjourned. The said Case No. 200 of 1991 was ultimately allowed ex parte by an order dated 26th October, 1991 (Annexure ’6′). Arun Lata filed Misc. Case No. 239 of 1991 for setting aside the ex parte order dated 26th October, 1991. On account of non-appearance of her counsel, Misc. Case No. 239 of 1991 was dismissed by an order dated 20th, November, 1992 (Annexure ’7′). Arun Lata filed Misc. Case No. 134 of 1992 for restoration of Misc. Case No. 239 of 1991. By an order dated 14th May, 1993, on account of non-appearance of Arun Lata’s counsel. Misc. Case No. 134 of 1992 was dismissed for default. Arvind Kumar thereupon filed an application under Section 28-A for execution of the ex parte order dated 26th October, 1991. The same was registered as Execution Case No. 34 of 1993 in the Court of the Civil Judge, Bulandshahr. The said execution was allowed by an order dated 31st May, 1993 passed ex parte (Annexure ’12′). In the said order, a direction was given to the Senior Superintendent of Police, Bulandshahr to provide police assistance for bringing the child and produce him in the Court on 5th July, 1993 for delivery of custody to Arvind Kumar. For compliance of the said order, 13th August, 1993 was fixed. Arun Lata has now filed this writ petition seeking to quash the orders dated 31st May 1993 and 26th October, 1991.
6. By an order dated 12th August, 1993 passed in the present writ petition, the operation of the order dated 31st May, 1993 was stayed till further orders. It is this order which has been sought to be vacated by means of the application for vacating the interim order by Mr. Govind Krishna appearing on behalf of Arvind Kumar.
7. By an application for amendment, the following amendment has been sought to be incorporated :
“1. That in the title of the petition, wherein it has been stated that writ petition under Article 226 of the Constitution of India, should be added as “under Articles 226/227 of the Constitution of India” be added;
2. That in the grounds after ground No. G the following ground be added :
“H. Because in view of the order of the Hon’ble Supreme Court dated 20-2-1985, it was not open to the respondent to file a petition for the custody of. Master Nipun’.
3. That in the prayer clause after prayer No. V the following prayer may be permitted to be added :
VI. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the order dated 20-6-1992 passed in Misc. Case No. 239 of 1991 and the orders dated 13-4-1992 and 14-5-1993;
VII. To issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the ex parte decree passed in Matrimonial Petition No. 208 of 1991;
VIII. To issue a writ, order or direction in the nature of mandamus directing the respondents not to give effects the orders dated 20-5-1992, 13-4-1992 and 14-5-1993.”
8. Mr. Govind Krishna opposed the said amendment on the ground that the same having been made at such a belated stage, the amendment should not be allowed. He also contended that the amendment, if allowed, would not only change the complexion of the case made out by the petitioner, it would also change the whole nature and character of the proceedings. Mr. Kumar on the other hand, contended that amendment would neither change the complexion of the case nor would have the effect of changing the nature and character of the case. The situation is as such that the delay cannot stand in the way of allowing the amendment in the special facts and circumstances of the present case. Inasmuch as it is only another point of view on which the orders impugned could be assailed has been sought to be incorporated as ground. It is only in effect supplemental and are elaboration of the grounds already taken. The objection taken is technical since the order dated 26th October, 1991 has already been challenged. The other three orders dated 13th April, 1992, 20th may 1992 and 14th May, 1993 have been sought to be included by way of mere formalities. Therefore, the amendment should be allowed.
9. I have heard both the counsel on the question of amendment. The fact remains that it was the order dated 29th October, 1991 in execution whereof the order dated 31st May, 1993 was passed and these are the two principal orders on which the rights of the parties survive in favour of or against the one or the other. The other two orders dated 13th April, 1992 and 20th May, 1992 are the orders by which the applications for recalling the order dated 26th October, 1991 were dismissed for default. Therefore, those are only ancillary orders. In case the order dated 26th October, 1991 is set aside, then the said orders dated 13th April, 1992 and 20th May, 1992 would become redundant and/or non-est. Similarly if the order dated 26th October, 1991 is set aside, then again the ex-parte order and the execution thereof passed on 14th may, 1993 would similarly become redundant and non-est. These are pure technicalties. When the two principal orders have been challenged, simply because of a technical flaw in not challenging the said three orders, the writ petition cannot be thrown away and would very well be maintainable even without the same if on merit or otherwise the order dated 26th October, 1991 could be or is interfered with in exercise of the discretionary power under Article 226. The amendment seeks to incorporate a ground and three prayers which does not in any way change the nature and character of the proceedings. Neither it has any effect on the complexion of the case made out. Therefore, the amendment sought to be incorporated, by no stretch of imagination, could be said to be inconsistent with the pleadings.
10. The application has been originally inscribed as one under Article
226. By amendment it was also sought to be inscribed alternatively as one under Article 227. Whether the application is maintainable under Article 226 or 227 would be dealt with later on. Whether this Court will exercise its discretion either under Article 226 or 227 would also be gone into subsequently. For the purpose of allowing the amendment, it is not required to go into those questions, it is the jurisdiction which is being sought to be invoked. In case a particular kind of proceedings is not maintainable and a different kind of proceeding lies in respect thereof, the Court has jurisdiction to convert the one into the other subject to limitation and Court-fee, as the case may be. This question will also be gone into later on when the question of maintainability as has been raised by Mr. Govind Krishna will be dealt with. At this stage, in view of the legal propostion that this Court has jurisdiction in appropriate cases to convert a proceeding from one into the other, for the sake of deciding the question of amendment, it is not required to be gone into the said question. Subject to the objection taken on the question of maintainability of the writ petition and its conversion into one under Article 227, the amendment as a whole is hereby allowed and shall be deemed to be incorporated in the writ petition.
11. Mr. Govind Krishna contends that the jurisdiction under Article 220 and Article 227 are altogether different. The petitioner has to make a choice which jurisdiction he seeks to invoke. It is an option exercised by the petitioner. If opted for one, the other shall be deemed to have been waived by the petitioner. By way of amendment, he cannot opt for the other since been waived. The petitioner cannot opt for both on being indecisive. In such cases, he contends that though the Court has jurisdiction to convert the one into the other, the Court should not exercise its discretion in favour of the petitioner which he had deliberately given up earlier. Secondly he contends that the scope of Article 226 and 227 cannot go together and, therefore, an application cannot be treated to be an application under either one or the other.
12. Under Article 220, the High Court exercises the jurisdiction conferred on it by the Constitution to issue writs against any person. The exercise of writs are restricted by the restraint exercised by the Court upon itself. Writ as it originally conceived was available against the State and the authority within the meaning of Article 12. The concept of authority under Article 12 has been widely expanded by various judicial pronouncements and has developed to an extent as it stands today. By reason of development in law, the horizon of Article 12, has been extended not only to include the State and the other authorities but also the agencies and instrumentalities of the State (See Ramanna Daya Ram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, Ajay Hasis v. Khalid, AIR 1981 SC 487 and Central Inland Water Transport Corporation v. Brojo Nath Ganguli, AIR 1986 SC 1571).
13. The organs of the sovereign has been divided into three-legislature, executive and the jurisdicary. Article 12 while defining “the State” included the Government and parliament of India and the Government and the Legislature of each of the States and local and other authorities within the territory of India or under the control of the Government of India. This definition has been included in Part III in relation to Fundamental Rights. Whereas in Part V dealing with the Union in Chapter I, it mentions Executive and in Chapter II it mentions Parliament. While Judiciary has been dealt with in Chapter IV. Similarly in Part VI dealing with the States, Chapter II deals with the Executive while Chapter III relates to the State Legislature and Chapter V deals with the High Courts in the States. Fundamental rights are available against the State. These fundamental rights are enforced under Article 226 through High Courts. The Courts while discharging judicial functions is not a State and no fundamental right is available against the judiciary when it discharges judicial functions. The Judiciary may be State in relation to a certain class of people when it exercises administrative functions over them. Judiciary cannot be State for enforcement of fundamental rights in its relation with the litigants who come for enforcement of their rights through judiciary. That was the reason, despite existence of Article 226, immediately thereafter Article 227 has been engrafted conferring overall superintending power on the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Similarly Article 32 has been engrafted in relation to the Apex Court. The learned counsel for the opposite party contends that since the order impugned is an order passed by a Civil Court, it is not amenable to writ jurisdiction particularly when the dispute is a dispute between two private persons, as has been held in the case of Matthan Singh v. II Additional District Judge, Meerut, (1996)1 All Rent Cas 117.
14. The question was considered in the case of Ganga Saran v. Civil Judge Hapur, AIR 1991 All 114 by a Full Bench of this very Court in which the principle was laid down to the extent that writ will lie against an order passed by the Civil Court where “either appeal or revision under Section 115, C.P.C. is available to the High Court because of the amendment of Section 115, C.P.C. at Allahabad on the same principle on which the jurisdiction under Article 226 is exercised provided that there has been violation of fundamental principles law and the relief sought for is not a relief which the other side is not obliged to perform in discharge of his public duty. The decision in the case of Matthan Singh (supra) is not an independent decision but is an understanding on the reading of the ratio decided by the Full Bench in the case of Ganga Saran (AIR 1991 All 114) (supra).
15. In the present case, the relief sought against the order does not emanate from any obligation to perform anything in discharge of public duty by either of the parties. The lis is between two private persons, none of whom is obliged to discharge any public duty in relation to the dispute concerned. There is no lis against the Judge or the Judiciary, while discharging judicial function, the Courts decide dispute between the parties. It never becomes a party to the lis and there being provisions for appeal and revision either under Section 115, C.P.C. or under Article 227, as the case may be, the jurisdiction under Article 226 can not be invoked, even though the test of violation of fundamental principles of law is satisfied. Therefore, in the facts and circumstances, of the case, the application under Article 226 of the Constitution of India is not maintainable against the orders impugned.
16. The learned counsel for the opposite party contends that if the application itself is not maintainable, there cannot be any scope of allowing an amendment in a non-maintainable proceeding. If the Court does not have the jurisdiction to entertain the writ petition, in that event, it cannot assume jurisdiction to amend the said writ petition in respect of which the Court cannot exercise jurisdiction. The scope of the two Articles being altogether different, the amendment if allowed altogether changes the nature and character of the proceedings.
17. The second contention of the counsel for the opposite party, as above does not stand to reason because of the fact that the nature of the proceeding is in substance a revision. While exercising writ jurisdiction, the High Court exercises its power of revision. It does not sit on appeal but a review of the manner in which the decision was made. The jurisdiction exercised under Article 227 is also a revisional jurisdiction. In exercise of Article 227, the High Court does not sit on appeal but revises or reviews the process making the decision or the jurisdiction or otherwise. Therefore, in substance the jurisdiction exercised under Article 226 and under Article 227 are substantially a revisional jurisdiction. The only difference is that the revision under Article 226 is exercised against the State or other authorities falling within the ambit of Article 12 while jurisdiction under Article 227 is that of superintendence over the Courts and Tribunals within the territory over which the High Court exercises its jurisdiction. It is only the authority whose order is being revised makes the distinction or difference as to which revisional power would be exercised by the High Court (226 or 227). Therefore, by reason of conversion of application from one under Article 226 to one under Article 227 does not change the nature and character of the proceeding. It remains are visional proceeding in either of the two cases. So far as the first part of the above contention of the opposite party is concerned, the same cuts at the root of the jurisdiction of the High Court to convert one into other. By now it has been a settled principle of law that the High Court has power to convert an appeal into a revision or a revision into an appeal subject to limitation and Court-fees, as the case may be. In the present case, neither under Article 226 or under Article 227, there is any provision provided for limitation. Though, however, delay in invoking the jurisdiction is a factor to be taken into consideration, similarly the question of Court-fee also docs not pose any hindrance in the present case inasmuch as the Court-fees in respect of an application under Articles 226 and 227 are one and the same.
18. The contention of the counsel for the petitioner that by reason of such amendment, the Court is creating jurisdiction in itself which it did not possess when the application was originally made. The Court cannot create jurisdiction through amendment in an application which was not maintainable as it stood when the amendment is being made.
19. The above contention is not acceptable because of the reason that the Court cannot create jurisdiction if it does not possess the same. Here by reason of amendment, no jurisdiction is created. The High Court is in possession of different jurisdictions under Article 226 and under Article 227. It is exercising in its discretion as to which jurisdiction it would exercise. The power of superintendence as conferred by Article 227 is ingrained in the High Court. This power of superintendence includes power of judicial revision to get the inferior Courts and Tribunal within the bound of their authority to see that they do what their duty requires and that they do it in a legal manner (See D.N. Banerjee v. R.K. Mukherjee, 1953 SCR 302 : (AIR 1953 SC 58). The power of judicial superintendence conferred by Article 227 is not limited by technical rules which govern the exercise of the power to issue writ to certiorari under Article 226. The power under Article 226 can be exercised only on an application of a party. But the power under Article 227 may be exercised by the Court also suo motu (See Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1995) 1 SCR 1104 : (AIR 1955 SC 233). The power under Article 227 is exercised by the Court in its discretion and cannot be claimed as of right by any party. Though there is no period of limitation prescribed for such application which may be refused inter alia on the ground of unreasonable delay which is not explained by special circumstances and particularly were by reason of delay the position of the opposite party has changed. Therefore, even if the High Court in its discretion thinks it can interfere with the matter is exercise of its power of superintendence, there the conversion would not affect materially the jurisdiction conferred on the High Court itself which is already in existence. That apart in the case of The Reliable Water Supply Service of India (P) Ltd. v. Union of India, AIR 1871 SC 2083 the High Court’s power to convert one into other has been recognised.
20. In the present case two orders have been challenged one dated 31st May, 1993 and the other 26th October, 1991. The writ petition was moved on 12th August, 1993 having been affirmed on 16th July, 1993. Therefore, so far as the order dated 31st May, 1993 is concerned, there was no question of delay. But so for as the order dated 26th October, 1991 is concerned, the same stands explained by reason of the statements made in the petition itself that two attempts to set aside order had failed and that in what circumstances the order dated 31st May, 1993 was passed. Therefore, it cannot be said that the delay remains unexplained particularly when from one order impugned in the petition, there is no delay at all. Therefore, I have not been able to persuade myself to agree with the contention of the learned counsel for the opposite party in this regard.
21. Now on the question of merit, the counsel for the opposite party contends that since both the orders impugned are orders either passed under Section 26 or flows from it, an appeal lies under Section 28 of the Hindu Marriage Act to the learned District Judge because of Section 19 of the Family Courts Act. Therefore, even if the High Court has power of superintendence under Article 227, even then it cannot convert the application under Article 227 into one under appeal since the appeal lay before the learned District Judge and not before the High Court. Alternatively he argues that even if the application under Article 226 is converted into under Article 227, the same cannot be exercised when there is an alternative forum by means of an appeal.
22. Admittedly if an adequate alternative remedy lay and if the same has not been availed of, the jurisdiction under Article 227 cannot be invoked as has been held in the case of Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, AIR 1976 SC 2446 (Para 6), wherein it is further observed :
“It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of the applicant.”
23. In the case of Shanker Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1 : 1969 (2) SCC 74 (78) it was held that if two remedies were open and the party had exhausted one it would not be sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. But in the present case, the other mode of relief has not been invoked or exhausted. Hence it is a case where the Court has to exercise one or the other of the modes if one does not apply and the other does. Therefore, it has to be looked into as to how far the contention of the counsel for the opposite-party works in favour of his contention or against that of the counsel for the petitioner.
24. The counsel for the opposite party contends that an appeal lies under Section 28 of the Hindu Marriage Act from an order passed under Section 26 of the said Act before the Court such appeal lay from an order passed by the Court. According to him, by reason of Section 19 of the Family Courts Act, the order has been passed by the learned Civil Judge who is conferred with the jurisdiction under the Family Courts Act. Ordinarily an appeal lies to the District Judge from an order passed by the Civil Judge. Therefore, in terms of Section 28, the appeal lies to the District Judge and not to the High Court. Therefore, there is no scope for conversion of the proceedings into one under appeal.
25. The above proposition does not appeal to me for the simple reason that under Section 19 of the Hindu Marriage Act, every petition under the said Act is to be presented before the District Court as defined in Section 3(b) thereof being the principal Civil Court of original jurisdiction or any other Civil Court notified by the State Government. An appeal from the principal Civil Court of original jurisdiction lies to the High Court as is understood from the scheme as expressed in Section 28 of the said Act. The issue is further clarified in a clear and unambiguous expression used in Section 19 of the Family Courts Act providing therein that an appeal shall lie from every judgment and order of a Family Court to the High Court notwithstanding anything contained in the Code of Civil Procedure or in any other law. The jurisdiction exercised by the Civil Judge is conferred by reason of Section 7 of the Family Courts Act as established under Section 3 of the said Act. Therefore, it cannot be said that the High Court cannot invoke its power to convert a revision into a memo of appeal or vice versa as sought to be urged by the learned counsel for the opposite party.
26. Section 26 of the Hindu Marriage Act provides as follows :
“26. Custody of children. — In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose; make from time to lime, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made”.
27. The said Section postulate that the Court may pass interim orders or may make provision in the decree with regard to the custody, maintenance and education of the minor children consistently with their wishes, wherever possible. Where such provision is made either by way of an interim order or in the decree, in such cases, after the decree, further applications can be made in respect of the custody, maintenance and education. By such decree or interim order and for such purpose, the proceeding for obtaining such decree shall be deemed to be pending. The Court may also revoke, suspend or vary such orders and provisions previously made. The scheme of the Section clearly indicates that the power under Section 26 can be exercised by way of interim order in the pending proceeding or while disposing of any such application made therein before the decree is passed or at the time of passing the decree by incorporating such provision in the decree itself, such provision can also be made. The power under Section 26 can also be exercised after the decree is passed only if such orders were passed previous to the decree either by way of interim order or in the decree itself, it is clear from the expressions used that only on these conditions as referred to above, the Court can exercise jurisdiction under Section 26. In view of the clear and unambiguous expression used, it does not postulate any other contingency. Inasmuch as if no order towards that end is made either by way of interim order or otherwise in the pending proceeding or it is not incorporated in the decree itself, in that event, the Court cannot assume jurisdiction to decide an application under Section 26 of the Act after the decree is passed, namely, whereafter the proceeding terminates and does not remain pending, the deeming clause postulates deemed pendency only in cases where provisions were made either by interim order or otherwise during the pendency of the proceeding or in the decree itself and not otherwise. My above view finds support from the clear and unambigous expression used in the Section itself. The expression “previously made” read with the expression “such provisions …………… as might have been made by such decree or interim orders’, there is no scope for any ambiguity i n the scheme itself. The language is very clear and simple There cannot be any other meaning because of the expression used in the said Section. When the meaning of a statute is available on a true construction by the plain meaning, the Court cannot add or substract anything therefrom. The principle of interpretation does not permit the Court to find out any other meaning when the language is clear, unambigous, sure and simple. In the present case, the language and expression used in Section 26 is clear, simple, unambigusous, sure and certain.
28. Section 26 does not confer an independent right to any person. It is a right conferred on the parties to a litigation litigating under the Hindu Marriage Act only in a pending proceeding and the proceeding deems to be pending as mentioned above. If no proceeding is pending, Section 26 does not create any right for initiation of a proceeding independent of a proceeding under the said Act.
29. It is also not contended by the counsel for the opposite party that the said proceeding is a suit or proceeding in relation to the Guardians and Wards Act and independent of the earlier proceedings for divorce. But, however, in the order dated 26th October, 1991, it is recorded that the opposite party was she guardian of the child according to the Hindu Minority and Guardianship Act and, therefore, he is entitled to the guardianship and custody of the child. The learned counsel for the opposite party contended that the earlier application for the custody of the child was under the Guardian and Wards Act or under the Hindu Minority and Guardianship Act. The order dated 20th February, 1985 records that the cases filed by each of them against the other will forthwith be withdrawn. The parties had undertaken to withdraw all the cases. Accordingly Arvind Kumar had withdrawn the cases. After having withdrawn, he is precluded from making any further application. The order, however, refers to an order dated 5th September, 1991, wrongly printed as 5th September, 1993, passed by the Apex Court but no such order is being produced before this Court. Even in the written statement filed by the counsel for the opposite party, no reference has been made to the order dated 5th September, 1991 except that the opposite party had filed Case No. 200 of 1991 under Section 26 of the Hindu Marriage Act in connection with Matrimonial Case No. 208 of 1991. Therefore, it is not a proceeding within the meaning of Section 7(1), Explanation (g) of the Family Courts Act. On the other hand, it was clearly a miscellaneous proceeding as asserted by the counsel for the opposite party under Section 26 of the Hindu Marriage Act filed in connection with the said Original Matrimonial Case No. 208 of 1991. The jurisdiction of the Family Court is confined in respect of the suits in proceedings of the nature referred to in the Explanation to Sub-section (1) of Section 7 and not otherwise, Clause (g) of the Explanation to Sub-section (1) of Section 7 refers to “a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, a minor.” The jurisdiction of the Family Court having been specifically provided, it can assume jurisdiction in respect of suits or proceedings, the nature whereof does not fall within one or other of the Clauses (a) to (g) of the said explanation. The Family Court cannot assume jurisdiction in respect of any other proceeding. Though the Family Court could exercise jurisdiction under Section 26 in a proceeding of the nature contemplated in Clause (a), hut because of Section 26 of the Hindu Marriage Act, no application under Section 26 could be made before the Family Court in connection with the proceeding of the nature contemplated in Clause (a) since no such proceeding is pending before the said Court which had already stood terminated by the passing of the decree. An application under Section 26 of the Hindu Marriage Act does not fall within the category provided in Section 7(1)(g) of the Family Courts Act.
30. Therefore, in the facts and circumstances of the case, the Family Court could not have assumed jurisdiction to decide the said application under Section 26 of the Hindu Marriage Act and try Matrimonial Suit No. 208 of 1991 which was not pending in the facts and circumstances of the case. As such the order passed is wholly without jurisdiction. Therefore, it is amenable to the jurisdiction exercised by this Court under Article 226 of the Constitution of India.
31. Now on the facts it is alleged by the petitioner that she was not being represented by the counsel engaged by her on the date when her applications were dismissed. She alleges that such a situation was brought in by reason of the influence exercised by the husband who happened to be a practising lawyer in the said Court. The husband had initiated the proceeding for divorce even without waiting for the birth of the child. The child was born only in March, 1982 whereas the ex parte decree was obtained on 5th May, 1982. The husband has alleged that he was not aware of the birth of the child till 1991. The husband never cared either for the wife or for the child and filed the suit for divorce in July 1981 and sought for guardianship and custody of the child after long 9 years when he had withdrawn his earlier petition in 1985. That he was not aware of the birth of the child is a misstatement on the face of the record that he had made an application for the custody of the child under the Guardians and Wards Act in May, 1984 which he had ultimately withdrawn.
32. That apart the impugned order dated 26th October, 1991 does not show that the wishes of the child was ever attempted to be taken into consideration. While deciding the case, the Courts had been exercising the jurisdiction of the Family Court which has been established with the object at bringing in a conciliation in the relation of the families as provided in Section 9 of the said Act which requires the Court to endeavour for settlement of the dispute. The word ‘endeavour’ occurred in Section 9(1) being preceded by the word ‘every’ signifies great importance in respect of the duty cast on the Court to bring about reconciliation. My attention has not been drawn to any such attempt to have been made towards reconciliation or any attempt to settle the dispute. The order impugned or any other order does not show that the wishes of the child was taken into account.
33. It is a settled principle of law that the paramount consideration for the custody of a minor child is the welfare and well being of the child and other considerations are subordinate. There is no rule of law that rights and wishes of parents should prevail over other considerations’. Such rights and wishes are recognised by nature and the society. But such rights are capable for administering to the welfare of the child. The parental rights remain qualified and not absolute for the purpose of investigation. Concern has been expressed by the Courts out of growing experience that serious harm may be caused even to any children by change in the custody, a difficulty which cannot be resolved by purely theoretical considerations. The mere desire of a parent should be subordinate to the consideration of the welfare of the child. In Rosy Jacob v. Jacob, AIR 1973 SC 2090, it was held :–
“The Court will generally refuse to give the custody of minor children to the guilty party, whether husband or wife. The section gives a wide discretion to the Court to make such orders as it may deem just and proper and whenever a marriage is dissolved or an order for judicial separation is made, it becomes the duty of the Court to take into consideration the welfare of the children which is of the paramount importance. The wishes of the mother or the father to have the custody of the child, cannot override the consideration of the welfare of the child.”
34. In Hari Chand Rattan Chand v. Virabala, (1974) 15 Guj LR 499: (AIR 1975 Guj 150), it has been held :
“Where the minor has a settled home the Court is not to pass a mechanical order removing the child to another home without consulting the parents and ascertaining the wishes of the minor. The Court has also to see that happiness of a child is linked with his associates, his work, his school and finally on his home, where he gets all the love and affection needed for his proper growth.”
35. Where the application for custody of her minor male child below the age of five years has been made by the wife in the course of proceeding for judicial separation instituted by her, the custody should be entrusted to her unless there are special circumstances suggesting that the welfare of the minor demanded otherwise. In a case before Delhi High Court, Suraj Prakash v. Santosh, 1979 Mad LR 161, it was held, “the rule of law of five years is a guiding factor but the pivotal factor is the benefit and well being of the minor. It is in the interest of the minors that they are allowed to remain in the custody of the mother till there is change in circumstances.” Though the section requires that wherever possible the wishes of the minor children should be consulted by the Court before passing any order under the section, particularly in the matter of their custody but I.D. Dua, J. who delivered the judgment in Chander Prabha v. Prem Nath, AIR 1969 Delhi 283 held that in a case of conflict between father and mother when the child is below five years of age, the mother has been rightly endowed with a preferential claim in regard to the child’s custody as in such cases the child is not capable of forming any intelligent preference and expressing it. In case of a child of tender age, care of the child will be taken much better if he is kept with his mother. In Mohini v. Virender, 1976 HLR 305 (sic), the Supreme Court held :
“The modern trend seems to be that in case of conflict between the mother and father regarding the custody of a child of tender age, preference should be given to the mother in the interest and welfare of the child. Age of the child cannot be held to be the Sole deciding factor regarding his custody and in a case where the age of the boy was eleven years, custody of the child was given to the mother as the welfare of the child warranted it so.”
36. The Society is in evolution and has been changing. Old concepts and thoughts are being replaced by new concepts and thoughts. The concept of penance and penance only by the Weaker section of the society viz. the women folk has undergone a change. If the men folk could remarry and the children could carry on with the father then how it would be conceived to be a taboo if the wife remarries and the child or children carries with her. The attitude and outlook of a fast changing developing society has to keep abreast the developed situation if it is good for the reorganised family. Law is for the society. Society is not for law. Therefore, the law has to keep itself abreast with the changes through evolutions and be alive to suit the needs to maintain a healthy and peaceful society vis-a-vis the family. Therefore, orders in this respect are to be passed with due, care and caution having regard to the facts and circumstances of the case.
37. The fact remains that the decree was passed ex parte on 5th May, 1982 on the Divorce petition filed on 23rd June, 1981 while the child was born some time in March, 1982. Therefore, there was no scope for anything to be provided either by way of interim order or any decree with regard to the custody, maintenance and education of the child. The learned counsel for the opposite party has not been able to show anything that the decree contained any provision with regard to the custody, maintenance or education of the child nor he has shown anything that there was any interim order in respect thereof. The application under Section 26 being Case No. 208 of 1991 was filed some times in 1991 long after the decree. By reason of such application, the Court had no jurisdiction to entertain the same since the proceedings for obtaining the decree could deem to be pending only when such orders are provided either in the interim order or in the decree. If no provision in respect of custody etc. is made either in the interim order or in the decree for the purpose of Section 26, the proceeding terminates with the passing of the decree. By no stretch of imagination, it can be deemed to be pending under Section 26 in view of the specific expression used, as indicated above.
38. If the Court does not have jurisdiction and the application is entertained by misconceived notion and the jurisdiction is exercised though it had none, the order is a nullity. In absence of any jurisdiction, the order can, in no way, be treated to be an order in exercise of such jurisdiction. Therefore, the order in the present case, by no stretch of imagination, could be said to be an order passed under Section 26 of the Hindu Marriage Act and, therefore, no appeal can lie against such order under Section 28(2). The order under Section 26 as has been made appealable under Sub-section (2) passed in proceeding under the Hindu Marriage Act indicates by reason of expression used in the said Sub-section (2) that the said order is to be passed as contemplated within the meaning of Section 26 only when the same is an interim order. Such orders can be appealable even if passed after the decree provided the proceeding is deemed to be pending on satisfaction of the conditions as mentioned in Section 26. Once the decree is passed without any provision either by way of order passed on interlocutory application or in the decree itself, in that event, the decree becomes final and it cannot be revived for the purpose of being deemed to be pending by filing of any application subsequent to the decree. Section 26 is provided for passing order of custody by way of interlocutory measure in a matrimonial proceeding. The relief with regard to the custody and maintenance of a child is provided in the Guardianships and Wards Act and in the Hindu Minority Guardianship Act, 1956. Such relief can be had independently, even without a matrimonial proceeding under the Hindu Marriage Act or any other Marriage Act, under the provision either under the Guardians and Wards Act or under the provision of the Hindu Minority and Guardianship Act, as the case may be. Only to avoid multiplicity of proceedings. Section 26 has been engrafted for the intention of granting relief with regard thereto if a proceeding is pending. But as soon the proceeding terminations, Section 26 cannot be available. If such an interpretation is given, in that event, it will be a parallel statute with those of the Guardianship and Wards Act and the Hindu Minority and Guardianship Act. Such an interpretation would be preposterous. The phrase “orders made by the Court in any proceedings under this Act under Section 25 or Section 26 clearly indicates that such appeal lies against the order passed under Section 26 in a pending proceeding and not otherwise. Therefore, in the present case, the impugned order, in the facts and circumstances of the case, not being an order under Section 26 passed in a proceeding under the said Act, since none were pending, is not appealable under Sub-section (2). The proceedings, not being one under Section 7(1)(g) of the Family Courts Act or a proceeding arising out of one under Section 7(1)(a), the order impugned is also not appealable under Section 19 of the Family Courts Act.
39. The fact as disclosed above is s o aggrevating, it is the duty of the Court to activate itself to put the things straight when the process are patently staring on the face of it as an abuse of it. It is the duty of the High Court to keep the subordinate Court within the limit of its jurisdiction even suo motu when such matters arc brought to its notice. Both Article 227 of the Constitution and Section 115 may be exercised without any application. Such observations is supported by the view expressed in the case of Jatindra Mohan Nandy v. Krishnadas Nandy, 56 Cal WN 858 : AIR 1953 Cal 34 (Para 6 of AIR) wherein it was held :–
“In any event this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us.”
40. Mr. Justice P.N. Mookherji, in the case of Mahendra Dutta and Co. (P.) Ltd. v. Uma Charan Lal, (1964) 68 Cal WN 179 (DB), presiding over the Division Bench had laid down :
“It is hardly arguable that a point, which goes to the root of the Court’s jurisdiction cannot be taken in a revision application if the said point has not been urged before the trial Court. That will practically nullify the revisional powers of this Court in very appropriate cases in many instances. If the trial Court has passed an order, which it had no jurisdiction to make, or which was made in the irregular or illegal exercise of its jurisdiction. This Court will be failing in its duty if it does not revise the same simply because the point of jurisdiction was not taken in the trial Court. It is of course true the exercise of the revisional power of this Court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, if the exercise of this discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this Court, simply because it was not taken in the trial Court.”
“……It seems to us that when the Rule comes up for final hearing before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other taken the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection. The Court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. Indeed, in every rule issued by this Court, we have the residuary clause, “such other or, further order as to this Court may deem fit and proper.” In our view, those words are comprehensive and wide enough to include all appropriate revisional grounds and to allow this Court to interfere in a proper case even on a ground which was not taken at the time the rule was issued, or upon which the Rule was not initially issued. In the other words, such interference may well be made even on a ground other than the one on which the Rule was issued.
In short, in a matter of this kind, where a question of jurisdiction is involved, to deprive a party of suitable relief under the revisional powers of this Court on the ground that the particular objection was not taken in the trial Court, or that even if it was taken in the trial Court, as Rule was issued on that ground, would be to de feat the ends of justice and, in any view, such a restricted interpretation of the scope of the revisional powers of this Court would not be consistent either with law or with the principles of justice, or with precedents or authority.”
41. Following the said two decisions the Hon’ble Mr. Justice N.K. Mitra in the case of M/s. Dwarika Das Raghubir Prasad Chaudhary, (1987) 1 Cal LJ 479.
“The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned.”
42. Similar view was taken following the above decisions in the case of Ratan Muni Jain Intermediate College, Agra v. Director of Education (Secondary), Allahabad, AIR 1997 All 163.
43. The facts of the present case, as disclosed above, are such as this Court is required to intervene because of the reason that proceedings in which the impugned orders were passed were wholly outside the scope and jurisdiction of the learned single Judge, as has been observed earlier. Therefore, the impugned orders dated 26th October, 1991 and 31st May, 1993 (Annexures ’6′ and ’12′) are hereby set aside.
44. In the result, this revision application under Article 227 of the Constitution is allowed.
There will, however, be no order as to costs