Guardians
and Wards Act, 1890 - Section 17 - A case involving dispute on rival claims for
custody of minor wards cannot be decided like a case involving rival claims as
to property or assets of the spouses.
The welfare, growth and development of the children
are the predominant factors which the Family Court has to be cognizant of while
choosing the fit person among the contesting guardians. No hard and fast
principle could be laid in this respect for identifying the circumstances which
vouch for the interest and welfare of the child. All that depends on the
individual facts and circumstances of each case.
Family
Law - Immoral Character - Allegations charging immorality are not matters for
mere speculation, but are liable to be proved by convincing evidence.
Except appellant's testimony alleging immoral
character on the respondent, there is nothing on record to corroborate her.
PW2, a close relative of her has no direct knowledge about the truth of the
allegations made by the appellant. PW1, the appellant, was cross- examined by
the respondent denying all these allegations even though he did not choose to enter
the box to deny the allegations against him. On re-appreciating the oral
evidence on record, we are not convinced that the appellant could establish any
of her allegations imputing immoral character on the respondent. She was not
able to specify the name or identity of any woman with whom he had the alleged
adulterous relationship. Like wise, except a general and bald allegation that
he used to take drugs and come home late after being drunk, no specific
incident in which he behaved immorally or tortured the wife and children, could
be testified by her.
Guardians
and Wards Act, 1890 - Section 17 - The mother's love, affection and company
with the girl children during their growing age especially when they near the
age of puberty cannot however, be emphasised as a sole factor in deciding their
over all welfare.
C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.
Mat Appeal No.1161 of 2017
Dated this the 15th
day of March 2019
AGAINST THE ORDER/JUDGMENT IN OPGW
1309/2014 of FAMILY COURT, MAVELIKKARA DATED 26-05-2017
APPELLANT
/ PETITIONER:
DIVYA
SUSAN THOMAS @ DIVYA SUSAN MANOJ
BY
ADV. SMT.S.KARTHIKA
RESPONDENT
/ RESPONDENT:
MANOJ
VARGHESE
BY
ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.JAISON JOSEPH SRI.N.RAGHURAJ
THIS
MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON,18.1.2019 THE COURT ON
15.03.2019 DELIVERED THE FOLLOWING:
J
U D G M E N T
T.V. ANILKUMAR,
J.
Appellant,
the mother of two minor wards, 'Eva Mary Manoj' and 'Leah Susan Manoj', having
lost her claim for permanent custody of the children in O.P.(G&W)
No.1309/2014 before Family Court, Mavelikkara, has come up in appeal
challenging dismissal of the Original Petition filed by her father, restricting
her right to the limited extent of custody of children only during the annual
school vacation.
2. Appellant was married to the
respondent on 9.1.2018. After the marriage she joined the respondent in Dubai,
where he was employed. Both lived together in the matrimonial home at Dubai along
with the respondent's parents. 'Eva Mary Manoj' and 'Leah Susan Manoj' were
born respectively on 13.12.2009 and 1.7.2010. She lived with the children, the
respondent and his parents only till 3.5.2014, when she left for her parental
house in Pathanamthitta. The children were admitted in the Indian High School,
Dubai and they continued study in the said school until they were shifted to
the school at Pathanamthitta under interim orders issued by this court during
the pendency of the above appeal.
3. Her case is that, ever since
she started matrimonial life with the respondent, he treated her with cruelty.
He is an alcoholic and used to take narcotic drugs almost on all days. He
refused to develop any love and affection towards her or to the children and failed
to discharge the duties of a husband-cum-father. Ultimately, in order to save
herself from the continued harassment, she left for Kozhenchery, her native
place in the district of Pathanamthitta. Since the children were continuing
education at that time in Dubai, she was compelled to part with the minor
children and after joining her parents and relatives in Kozhenchery, she filed
O.P.No.612/2014 before the Family Court, Pathanamthitta seeking to recover her
gold ornaments and assets, allegedly misappropriated by the respondent and his parents.
She hoped to see her children in the Family Court, Pathanamthitta during the
counseling sessions, which however did not materialised. She was, therefore,
constrained to file this Original Petition on 26.12.2014 and she secured an
order of interim custody of minor wards from the respondent directing their
production on 29.12.2014 before the Family Court, Pathanamthitta. But the respondent,
contravening the order of the court, removed the children to Dubai on
30.12.2014. She continues to allege that the wards being growing girl children,
they are badly in need of her company, love and affection. According to her,
for the development and growth of the children, mother's company is quite
inevitable. The respondent being a person leading adulterous life, custody of
children with him may not be conducive. Appellant claimed to have sufficient
means to maintain the children and to impart better education in her native place
in Pathanamthitta. Enumerating the aforesaid contentions in the Original
Petition, the appellant sought a decree for permanent custody of the minor
wards.
4. The respondent in his counter
statement denied the allegation that he was immoral and alcoholic. He also
denied the allegation that he removed the children to Dubai after flouting the
order of the Family Court, Mavelikkara. He stated that the children were taken
out of India only with the consent of the Family Court, Pathanamthitta.
According to him, the appellant is a mentally ill person and further, she has
been suffering from a disease called 'exima'. She has always been unstable in
her behaviour to the wards as well as to himself. She is not capable of taking
care of the affairs of the children and has willfully abstained from attending
the kitchen work. Her parents in the native place are not capable of imparting
proper education to the children, since they too have no sufficient means to
spend for education of the children. Father of the appellant is also mentally
an ill person, who is confined to the four walls of the house. Her mother is a
part time LIC agent incapable of drawing any substantial income to give
financial support to her family. There are no better schools also anywhere in
her home place. In pith and substance, the respondent's contention is that,
granting permanent custody of the wards to the appellant, would be prejudicial
to the interest and welfare of the children.
5. The court below examined the
question as to whether appellant was entitled to permanent custody of the
minors on the basis of the oral and documentary evidence brought before it. Exts.A1
to A17 were marked on the side of the appellant. Herself and a close relative
of her were examined as PWs 1 and 2, respectively. No oral evidence was
tendered on the side of the respondent. He produced Exts.B1 to B8.
6. The Family Court found that,
the two minor wards started their early education abroad and continued their
studies in the Indian High School, Dubai and all throughout they comfortably
stayed in the company of respondent and his parents, even after appellant's departure
from Dubai on 3.5.2014. After finding that appellant left Dubai without the
consent of respondent and her in-laws, it was held that, continued stay of the
children along with the respondent would be better for their welfare. It was
held that there was nothing on record to show that the respondent was
disqualified from continuing with the custody of the minors. The appellant was
found to have sufficiency of means to maintain and also capacity to educate the
wards. The court below found that the appellant failed to prove that she had
sufficient means to maintain the daughters at her native place. While declining
the claim for permanent custody, the court below allowed her the limited right
to hold custody of the wards for 30 days during their annual school vacation in
Dubai.
7. Challenge directed against
the impugned judgment of the lower court is that, the evidence on record
proving her right to custody of the children was not properly weighed or
appreciated. It is contended that, for all round development and growth of the
two children, their stay with the mother, especially during their teen age, is
a must. It is also one of the contentions that the respondent has no means and
he has a very weak moral side. He used to drink, take drugs and lead adulterous
and wayward life. It was also argued that the respondent is a person who
contravened the order of the Family Court, Mavelikkara directing for production
of the children and had shifted the children to Dubai when the order for
interim custody continued to be in force.
8. The sole point that arises
for consideration and decision is whether the entrustment of the minor wards in
permanent custody of the appellant will be in the interest and welfare of the
children.
9. We heard counsel appearing on
both sides.
10. Certain facts are not in
dispute between the parties. After the marriage the spouses started living in
the matrimonial house at Dubai where the respondent was employed. The parents
of the respondent were the other inmates of the matrimonial home. The minor
wards 'Eva Mary Manoj' and 'Leah Susan Manoj' were born on 13.12.2009 and
1.7.2010, respectively. The appellant left company of the respondent and the
children on 3.5.2014 and till then she resided with the respondent, his parents
and the minor wards at the matrimonial house in Dubai. While she left the
respondent owing to the alleged acts of cruelty on her, the children continued
their study in the Indian High school, Dubai. The appellant was not having any sort
of employment nor was an earning member during her stay in Dubai.
11. Learned Judge of the Family
Court, Mavelikkara, while appreciating the facts, circumstances and evidence,
found that, it was not expedient to give permanent custody of the wards to the
appellant since it would only upset the educational prospects of the children. Further,
the learned Judge did not find any reason which could disqualify the respondent
from having custody of the wards. Allegations imputing immoral character on the
respondent were disbelieved by the learned Judge. In the matter of financial
status also, it was found that the respondent has adequate means to take care
of the children and to educate them in the school where they were already
undergoing their education.
12. What matters and is
significant in cases of this nature, where there are rival claims for custody
between the natural parents is, the question as to whether the custody of the
wards claimed by the petitioner/parent will be in the interest and welfare of
the wards. The ultimate decision of the court has to flow from the totality of
the circumstances that determine the welfare of the children, than from the
mere inter-se rights and claims of the natural guardians for custody. A case
involving dispute on rival claims for custody of minor wards cannot be decided
like a case involving rival claims as to property or assets of the spouses. The
welfare, growth and development of the children are the predominant factors
which the Family Court has to be cognizant of while choosing the fit person among
the contesting guardians. No hard and fast principle could be laid in this
respect for identifying the circumstances which vouch for the interest and
welfare of the child. All that depends on the individual facts and
circumstances of each case.
13. Under Section 17 of the
Guardians and Wards Act 1890, in considering the welfare of the minor, the
court shall have due regard to the age, sex of the minor as well as the
character and capacity of the proposed guardian. The intelligent preference of
the minor, if it is old enough, to form such opinion, is also one of the
considerations on which welfare of the child is determined. In Nil Ratan Kundu & another Vs.
Abhijit Kundu [(2008) 9 SCC 413], the Hon'ble Supreme
Court laid down the law in this respect as follows:
“52.
In our judgment, the law relating to custody of a child is fairly well settled
and it is this: in deciding a difficult and complex question as to the custody
of a minor, a court of law should keep in mind the relevant statutes and the
rights flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem and is required to be
solved with human touch. A court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the paramount
consideration should be the welfare and wellbeing of the child. In selecting a
guardian, the court is exercising parens patriae jurisdiction and is expected,
nay bound, to give due weight to a child's ordinary comfort, contentment,
health, education, intellectual development and favourable surroundings. But
over and above physical comforts, moral and ethical values cannot be ignored.
They are equally, or we may say, even more important, essential and
indispensable considerations. If the minor is old enough to form an intelligent
preference or judgment, the court must consider such preference as well, though
the final decision should rest with the court as to what is conductive to the
welfare of the minor.”
14. There are mutual allegations
as against each of the parents that he or she is not qualified to seek
permanent custody of the wards. The two wards, who are girl children had now
attained the age of 9 and 8 years, respectively. Right from the beginning, the appellant's
allegation against the respondent is that he is an alcoholic and is also
habituated to taking drugs regularly. He used to come late in the night and
showed no interest in the affairs of the children. He did not show any kind of
fatherly affection also to the wards. He was also imputed with immoral
character of leading adulterous life with ladies of his choice in many places.
15. Except appellant's testimony
alleging immoral character on the respondent, there is nothing on record to
corroborate her. PW2, a close relative of her has no direct knowledge about the
truth of the allegations made by the appellant. PW1, the appellant, was
crossexamined by the respondent denying all these allegations even though he
did not choose to enter the box to deny the allegations against him. On
re-appreciating the oral evidence on record, we are not convinced that the
appellant could establish any of her allegations imputing immoral character on
the respondent. She was not able to specify the name or identity of any woman
with whom he had the alleged adulterous relationship. Like wise, except a
general and bald allegation that he used to take drugs and come home late after
being drunk, no specific incident in which he behaved immorally or tortured the
wife and children, could be testified by her. Allegations charging immorality
are not matters for mere speculation, but are liable to be proved by convincing
evidence.
16. Respondent too has an
allegation that the appellant is not mentally stable. She, because of her
mental instability, is rendered incapable of attending even routine domestic
affairs and taking care of the children, are the allegations. According to him,
her father is also mentally unstable. There is nothing on record to show that
appellant has any sort of mental disorder and for that reason, she was not capable
of taking care of the children. The respondent failed to establish that the
appellant was disqualified from claiming permanent custody of the children on
account of alleged mental disorder. No oral evidence was adduced by the
respondent to prove his allegations in this respect.
17. One of the factors which
disqualifies the respondent, according to the appellant, is that he has no
independent means to maintain the children. She said that admission of the
second child Leah Susan Manoj to school was willfully delayed by the respondent.
So also, the first child Eva Mary Manoj was not paid school fees in time and
there were many instances when late fees were imposed. In our opinion, these
allegations do not merit any acceptance because the evidence on record proves
that when the appellant left the company of the respondent, both the children
continued their studies in the Indian High School, Dubai. It is true that late
fees had been imposed by the school authorities for delayed payment of tuition
fees. Nonetheless, appellant has no case that either she by herself paid the
fees or that the children were terminated from the school on account of the
delayed payment of fees. She was not at all an earning member of the family.
She herself admits that respondent was employed abroad. He has not, however,
produced any documents showing the details of his employment and such production
does not appear to be necessary in view of appellant's own admission that he
has got employment. In our view, these facts sufficiently prove that respondent
has sufficient means to educate and bring up the children. At one portion of
her testimony, the appellant said that the respondent was suspended from his
job, but we find that there is no evidence to prove this allegation. From the
evidence on record, in our view, the Family Court has rightly found that the respondent
is possessed of sufficient means and has financial capacity to maintain both
children.
18. As regards appellant's
financial capacity, the evidence is confined to PW2, a close relative of the
appellant. She said that appellant is employed in a showroom and used to earn
monthly income of Rs.10,000/-. Any way there is no documentary evidence to prove
that the appellant has any source of income. Even assuming that she has source
of income as stated by PW2, the question is whether her present income is sufficient
to bring up the wards and to meet their educational expenses.
19. During pendency of this
appeal and on the motion of the appellant, this court by an order dated
9.4.2018, granted interim custody of the two wards to the appellant and
permitted her to secure admission of the children at a school in
Pathanamthitta. Pursuant to the order, the minor wards were admitted in Madona
International Residential School, Pathanamthitta in 4th and 2nd standards, respectively. They are now continuing their studies in the
said school. It is an admitted fact that they are staying with the appellant,
her parents and also the brother of the appellant in the family house. The
arrangement made by this court as per order dated 9.4.2018 is only on a
provisional basis and will be subject to the final outcome of this appeal. Even
though that order was challenged by the respondent before the Hon'ble Supreme
Court in SLP (civil) 12705-12706 of 2018, it was only confirmed.
20. The income which the
appellant sought to prove through PW2 seems to be insufficient to meet the
educational and other expenses of the children. No evidence is made available
to convince the court that she has any more sources of income. It appears that the
expenses spent by the respondent for the wards' education in Indian High
School, Dubai is far higher amount than what the appellant now spends in the
local school. Therefore, in the matter of financial capacity of the appellant,
as proved by evidence, we have our own doubt as to how successfully she can
promote the education of the children in the native school.
21. It is one of the contentions
of the appellant that the respondent failed to produce the wards in compliance
with the order of the Family Court, Mavelikkara entrusting interim custody of
the children with the appellant. The respondent willfully removed the children
to Dubai by disobeying the order of the court is the allegation. This
contention was not substantiated. On the other hand, we are convinced from the
conduct of the respondent, following the order of this court dated 2.4.2018
granting interim custody of the children, that he has no tendency to disobey
the orders of this court. He produced the children and submitted to the interim
arrangement of custody made by this court and the said arrangement continues to
be in force, even now.
22. We interacted with the
children in our chambers in order to ascertain their preferential choice of
residence. During the course of interaction, we were impressed that both wards
were not happy with the environment in which they are presently placed. Both of
them expressed their desire to study in the Indian High School, Dubai where
they felt being enriched by better education than from the native school. If we
are to attach importance to the quality of education to be imparted to the
wards, in our opinion, they will have to be essentially sent to the respondent,
who is presently abroad where they are sure to get good quality of education as
in the past. One of the documents produced before the trial court shows that
the elder child Divya Susan Thomas secured a good track of academic record while
she was in the Indian High School, Dubai.
23. The learned counsel for the
appellant submitted that, the wards being girl children should essentially be
left in the company of the appellant mother, in the interest of their emotional
and mental development especially when they come closer to the age of attaining
puberty. In this respect learned counsel for the appellant brought to our
notice an illuminating decision of the Hon'ble Supreme Court, Vivek Singh V. Romani Singh [(2017) 3
SC 231]. We extract paragraphs 19 and 20 of the
said decision herein below:
“The
aforesaid discussion leads us to feel that continuous company of the mother
with Saesha for some time, is absolutely essential. It may also be underlying
that the notion that a child's primary need is for the care and love of its
mother, where she has been its primary care giving parent, is supported by a
vast body of psychological literature. Empirical studies show that
mother-infant 'bonding' begins at the child's birth and that infants as young
as two months old frequently show signs of distress when the mother is replaced
by a substitute caregiver. An infant typically responds preferentially to the
sound of its mother's voice by four weeks, actively demands her presence and
protests her absence by eight months, and within the first year has formed a
profound and enduring attachment to her. Psychological theory hypothesies that
the mother is the centre of an infant's small world, his psychological
homebase, and that she 'must continue to be so for some years to come'. Developmental
psychologists believe that the quality and strength of this original bond
largely determines the child's later capacity to fulfill her individual
potential and to form attachments to other individuals and to the human
community. No doubt this presumption in favour of maternal custody as sound
child welfare policy, is rebuttable and in a given case, it can be shown that
father is better suited to have the custody of the child. Such an assessment,
however, can be only after level playing field is granted to both the parents.
That has not happened in the instant case so far.”
24. But, as per the said
decision itself, no hard and fast principle could be laid down entitling the
mother of a girl child to have custody indiscriminately in all cases irrespective
of the special circumstances in which the child is placed. In short, in all
cases of custody of a child, whether male or female, interim or permanent, shall
be decided based on the welfare considerations relating to the child. No fixed
and rigid rule or any standard could be laid in this respect as made clear by
Hon'ble Supreme Court in Vivek Singh's case(supra). From the point of view of the financial status of the parents,
we are of the view that respondent could be placed on a higher pedestal. If the
wards are to gain better and qualitative education, they have necessarily to be
shifted to the Indian High School at Dubai, where the wards, as they themselves
claim, will feel at home. The future of the wards is more important factor than
anything else since the children are considered by the society to be an asset
to the nation. In this respect, we extract paragraph 13 of Vivek Singh's case (cited
supra).
“Second justification behind the “welfare” principle is the
public interest that stand served with the optimal growth of the children. It
is well recognised that children are the supreme asset of the nation. Rightful
place of the child in the sizeable fabric has been recognised in many international
covenants, which are adopted in this country as well. Child-centric human
rights jurisprudence that has been evolved over a period of time is founded on
the principle that public good demands proper growth of the child, who are the
future of the nation.”
25. Considering the prospects
and also the quality of education which the minor children are to be assured,
it appears to be desirable that their present stay with the appellant should be
shifted to the respondent, father. This, however, does not mean that the wards
are deprived of their company with the mother forever. The relationship between
the spouses has strained beyond such a repair that an immediate reunion does
not appear to be possible. Though welfare of the children demands their stay in
the joint company of the appellant and respondent, it has become an
impossibility. Therefore, the court itself has to find out some practical
solution to protect the over all interest and welfare of the wards. The
mother's love, affection and company with the girl children during their
growing age especially when they near the age of puberty cannot however, be emphasised
as a sole factor in deciding their over all welfare. This, however, does not
mean that the children should be deprived of the love and affection of their
mother especially when they near the age of puberty. Being conscious of the
realities of life and also the need for mother's affection and company, we
consider that it would be proper if the wards are allowed to be with the
appellant, mother for the entire period of annual school vacation as opined by
the court below. The appellant will be entitled to have free access to the
wards through telephone as well as similar means available to her. These facts were
taken note of by the learned Judge of the Family Court, Mabvelikkara and we do
not therefore find any ground to interfere with the order of limited custody
allowed as per the impugned judgment.
In the
result, confirming the impugned judgment dated 25.6.2017 of the Family Court,
Mavelikkara we dismiss the appeal. The appellant will handover the custody of
the minor wards Eva Mary Manoj and Leah Susan Manoj to the respondent on the
next day of the closing of the Madona International School for vacation, so as
to enable him to secure admission of the children in the Indian High School at
Dubai, in the forth coming academic year. The venue for exchange of wards shall
be the Family Court, Mavelikkara. We make it clear that the Family Court,
Mavelikkara will be at liberty to modify and issue appropriate orders of
custody of the minor wards in the interest and their welfare, upon any
substantial change of the circumstances in the life of minor wards and the
parents.