Court: CUTTACK HIGH COURT
Bench: JUSTICE Krushna Mohapatra
Anil Kumar Pradhan Vs. Madhabi Pradhan On 15 October 2015
Law Point:
Child had become compatible with surroundings and situations where she has been staying. Dislocation of the child from a place where she has grown-up would not only impede her schooling but also cause emotional strain and depression on her. The welfare of child would be best served if she continuous to stay in custody of her father No fruitful purpose would be served by giving custody of a child to mother.
JUDGEMENT
1. Order dated 25.4.2014 passed by the learned Civil Judge (Senior Division), Champua in Guardian Petition No. 2 of 2013, allowing the petition under Section 25 of the Guardians and Wards Act, 1890 to hand over the custody of the minor girl to her mother, is under challenge in this appeal.
2. Briefly stated the petitioner-respondent (mother of the child) filed a petition under Section 25 of the Guardians and Wards Act, 1890 for custody of her minor daughter, namely, Poonam Pradhan, alleging that she got married to the opposite party-appellant No. 1, namely, Anil Kumar Pradhan, on 03.07.2010. After their marriage, the petitioner-respondent stayed in her in-laws house at village Balibandha in the district of Keonjhar. Out of their wedlock, Poonam was born on 7.7.2011. However, there was a break down in the marital life as the in-laws of the petitioner-respondent ill-treated her and did not provide the basic necessities for her sustenance and her minor daughter. On 17.4.2012, the petitioner-respondent was driven out from her in-laws house forcibly removing the custody of the minor daughter from her. However, due to intervention of the parents and relatives of the petitioner-respondent, she returned back to her in-laws house. Again on 5.1.2013, the opposite party-appellant Nos. 1, 2 and 4 forcibly administered poison to the petitioner-respondent for which she was hospitalized in Jhumpura C.H.C. and was discharged on the next day, i.e. on 6.1.2013. Learning about the incident, the father of petitioner-respondent came and took her back to his house, but her in-laws did not allow to take the minor daughter (Poonam) with her. The father of petitioner-respondent lodged an F.I.R. at Jhumpura P.S. which was registered as Jhumpura P.S. Case No. 3 of 2013 under Sections 498-A/323/307/34 I.P.C. read with Section 4 of the D.P. Act. The petitioner-respondent claimed that as Poonam is a breast feeding child, the opposite parties-appellants could not take proper care of her and she would be deprived of proper nourishment and affection of her mother. Hence, she filed the petition for the aforesaid relief.
3. The opposite parties-appellants filed their show cause admitting the marriage, relationship and custody of the child with them, but they denied all other allegations made in the petition. They contended that the petitioner-respondent never behaved properly with her elders and she was not looking after the child properly and abandoning the child, she left the in-laws house. However, the opposite party-appellant No. 1 after much persuasion brought her back for the welfare of the child. The petitioner-respondent was of unpredictable temperament and short-tempered. She used to loose her temper on trivial issues and used to be violent and was always threatening to commit suicide. She used to remain shabby and unclean. She was neither taking care of herself nor her child. Suspecting the petitioner-respondent to be suffering from mental illness, the opposite party-appellant No. 1 took her to the District Headquarters Hospital at Keonjhar, where she was examined by one Dr. Majhi, who was a Neuro-psychiatrist. Dr. Majhi on examination diagnosed that the petitioner-respondent was suffering from bipolar disorder i.e. a kind of mental illness, and advised her to be treated at Ranchi for advance treatment, but she resisted the same. They further contended that the allegation of administration of poison is cooked up. In fact, she locked the door of her room from inside and did not open the same. The opposite parties-appellants with much difficulty broke upon the door and found that she herself had consumed poison and thereafter, she was admitted at Jhumpura C.H.C. When the parents of the petitioner-respondent took back her on 6.1.2013, neither the petitioner-respondent nor her parents had ever asked for the child ‘Poonam’ and to take her with them.
4. It was their further case that the opposite party-appellant No. 4, the parental grandmother of Poonam, is taking care of her in the best possible manner. The petitioner-respondent wanted a son and instead was blessed with a female child for which she deserted the child and refused to take care of her. In the circumstances, if the custody of Poonam would be given to the petitioner-respondent, her mental and physical growth would be seriously affected. Therefore, they prayed for dismissal of the petition and to allow them the custody of the child.
5. The learned trial court considering the materials on record allowed the prayer of the petitioner-respondent directing the opposite party-appellant No. 1 to handover the minor daughter (Poonam Pradhan) to her mother (petitioner-respondent) within fifteen days failing which the petitioner-respondent can take custody of the child as per law. It was further directed that the opposite party-appellant No. 1 can meet the child on every alternative Sunday in the house of the petitioner-respondent’s father at Jayantigarh in between 9.00 A.M. to 5.00 P.M. Assailing the said order, the opposite parties-appellants have filed this appeal.
Before delving into the rival contentions of the learned counsel for the parties, it would be proper to take note of relevant provisions of law, i.e., Sections 2, 6 and 13 of the Hindu Minority and Guardianship Act, 1956 (in short ‘the Act, 1956’) as well as Section 25 of the Guardians and Wards Act, 1890 (in short ‘the Act, 1890’) which are reproduced hereunder:
“2. Act to be supplemental to Act 8 of 1890.–The provision of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardian and Wards Act, 1890 (8 of 1890).
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6. Natural guardians of a Hindu minor.–The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are–
(a) in the case of a boy or an unmarried girl–the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl–the mother, and after her, the father;
(c) in the case of a married girl–the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section–
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.–In this section, the expression “father” and “mother” do not include a step-father and a stepmother.
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13. Welfare of minor to be paramount consideration.–
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
Section 25 of the Guardians and Wards Act, 1890 provides as under:
“25. Title of guardian to custody of ward-
(1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882) 16.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.”
Thus, it is in the light of the aforesaid provisions of law, the rival contentions of the parties are to be considered.
6. Mr. S.K. Nayak, learned counsel for the appellants with vehemence submitted that though the welfare of the child is the paramount consideration, the pleadings made in the petition by the petitioner-respondent for custody of the child do not spell out a single sentence with regard to the welfare of the child. The petitioner-respondent only described about the alleged disturbances in her marital life and the alleged ill-treatment by her husband and in-laws. It appears from the pleadings that she wanted the custody of the child as of right since the child (Poonam) was of one and half years and was breast feeding child and she could not leave without breast feeding her child. It was pleaded that she was an educated woman and conscious about welfare of the child. But, the pleadings are conspicuously silent about how the welfare of the child (Poonam), lies in keeping her in the custody of her mother (respondent). Mr. Nayak further submitted that the petitioner-respondent did not have slightest love for the child and she refused to breast feed her when she was in matrimonial home. She was a self-centered lady and did not care for the welfare of the child. She deserted her daughter as she wanted a son. It was the petitioner-respondent who left the child with her in-laws. The opposite parties-appellants have another house at Keonjhar Town since last 25 years. For proper nourishment, the child was under the proper care of opposite party-appellant Nos. 2 to 4 at Keonjhar. She is now studying in a public school at Keonjhar. The District Headquarter Hospital at Keonjhar has well trained pediatricians. On the other hand, the petitioner-respondent leaves in a remote village in the State of Jharkhand having no access to the basic amenities including medical facilities. The grandmother of the child (opposite party-appellant No. 4) is taking personal care of the child. Hence, her mental and physical growth is best looked after by the appellants. If the custody of the child is given to the petitioner-respondent, the mental and physical growth of the child would be seriously affected. Hence, they prayed to set aside the impugned order.
7. Mr. B.K. Nayak, learned counsel for the respondent supporting the impugned order submitted that ordinarily the mother is the custodian of a minor child who is less than five years. When the child was taken out of the custody of the petitioner-respondent, she was a breast feeding child and was aged about only one and half years. He further contended that the Doctor (O.P.W. 4), who diagnosed the petitioner-respondent for having bipolar disease (mental disorder) advised to consult Nuero Psycatrics. Exts. A and B go to show that O.P.W. 4 had only examined the petitioner-respondent once on 25.7.2012 and there is no subsequent material to show that she was suffering from any kind of mental illness. Taking into consideration the decision of the Hon’ble Supreme Court in the case of Rajesh Kumar Gupta v. Ram Gopala Agarwal, reported in MANU/SC/0329/2005 : (2005) 5 SCC 359, learned trial court has rightly rejected the plea of mental illness of the petitioner-respondent. He further submitted that even if the financial condition of opposite parties-appellants is better than the petitioner-respondent, the same should not be a ground to refuse the custody of the child to the petitioner-respondent as it is always the duty of the father to maintain the legitimate child. Though the father of the child deposed in his evidence that his mother was taking care of the child but his mother who is opposite party-appellant No. 4 was not examined in support of the case. Further it was his contention that the appeal contains only general allegations and no specific ground is made out to assail the order impugned. The impugned order was passed taking into consideration the pleadings, evidence and settled law with regard to custody of the child and hence, the same needs no interference. Thus, he prayed for dismissal of the appeal and to confirm the impugned order.
8. Before hearing of the appeal, an attempt was made for conciliation between the parties by this Court and the parties were directed to appear before this Court in person with the child. However, by order dated 25.3.2015, this Court observing that attempt of settlement having been failed directed for hearing of the appeal on merit.
9. Section 6 of the Act, 1956 provides that the natural guardian of a Hindu minor, in respect of minor’s person as well as in respect of minor’s property, in case of a Boy or an unmarried girl, shall be the father, and after him, the mother, provided that the custody of the minor who has not completed the age of five years shall ordinarily be with the mother.
It is not disputed that marriage between the appellant No. 1 and respondent was solemnized on 3.7.2010 and Poonam was born out of their wedlock on 7.7.2011. Thus, the legitimacy of the child is not in question. At the time of filing of the petition under Section 25 of the Act, 1890, the child (Poonam) was only of one and half years old. At the time of adjudication of the petition, she was three years old and at present, she is four and half years old. Keeping in view the aforesaid legal position and the materials available on record, it has to be determined whether the petitioner-respondent is entitled to the custody of the child.
In order to consider the legality and propriety of the impugned order, this Court feels it proper to go through the pleadings of the parties at the outset to determine in whose custody the welfare of the child can be best achieved, which is the paramount consideration for determining the custody of the child. The petitioner-respondent had stated in para-8 of her petition that the opposite parties-appellants by showing physical force took away the child (Poonam) from her. She also pleaded in para-9 of her petition that Poonam Pradhan is aged about 1 1/2 years and is a breast feeding child and she (the mother) cannot leave without her breast feeding child. The opposite parties-appellants could not take proper care of her daughter and if her minor daughter will continue to stay with the opposite parties-appellants, she will be deprived of proper nourishment and mother’s affection. She also pleaded that she is an educated woman and is very much conscious about the welfare of her child. In reply, the opposite parties-appellants stated in para-5 of their show cause that neither the petitioner-respondent nor her parents asked for the child when the petitioner-respondent left the matrimonial home, as they considered the baby daughter to be a burden on them. The child being neglected by her mother, the opposite party-appellant No. 4 (grandmother of the child) has been fostering and nourishing the child and all the opposite parties-appellants are deeply concerned about the well being of the child. The opposite parties-appellants had also stated in para-6 of their show cause that the petitioner-respondent has no slightest love for the child and she resented to breast feed the child when she was in the matrimonial home. She being a self-centered lady did not care for the welfare of the child. The opposite parties-appellants have another house at Keonjhar Town since last 25 years. In order to avoid family bickering and unusual behavior of petitioner-respondent, the opposite parties-appellant Nos. 2 to 4 lived at Keonjhar and the child was with them all throughout. Keonjhar has District Headquarter Hospital and private Hospitals with well trained and foreign qualified pediatricians. On the other hand, the petitioner-respondent lives in a remote village in the State of Jharkhand having no access to basic amenities and medical facilities. The infant daughter (Poonam) is being well looked after by the opposite parties-appellants, who are conscious about the nutritional values of food she takes and from time to time, they consult the Child Specialist about the well being of the child. They further stated that if the child is left with the custody of her mother, her mental and physical growth would be seriously affected. They also pleaded that Poonam has been living happily and comfortably in the care and custody of the opposite parties-appellants and is bound to rot and suffer in the hands of the petitioner-respondent and her parents.
10. With regard to the welfare of the child, reiterating the pleadings in her deposition, the petitioner-respondent (P.W. 1) deposed that the opposite parties-appellants did not allow her to take Poonam and in para-9 of her deposition, she stated that Poonam will be better with her. Beyond that, she has not stated a single word as to how could she take care of the child, if the child (Poonam) stays in her custody. Except the above, the petitioner-respondent in her petition as well as the deposition has only alleged against her in-laws and disturbance in her marital life and tried to assert her right for the custody of the child. Of course, she denied to the suggestion put to her that she never breast fed the child and she could not take care of the child. P.W. 2, who is the father of petitioner-respondent, in his evidence stated in para-6 that Madhabi (petitioner-respondent) is an educated woman and is very much conscious about the welfare of the child (Poonam). He also deposed that her custody should be given to Madhabi for her proper care and nourishment. In para-12 of the cross-examination, he denied the suggestion that Poonam is quite well with the opposite parties-appellants. On the other hand, O.P.W. 1 (brother of appellant No. 1) in his evidence at para-8 deposed that the petitioner-respondent was very much indifferent towards her daughter, grossly neglected her, strongly protested and objected to breast feed her. In para-10 of his evidence, he deposed that they are quite resourceful to up-bring the child in a befitting manner and the family of petitioner-respondent has no sufficient means to look after the child. In para-11 of his evidence, he had categorically stated that the custody of the minor at the hands of petitioner-respondent would have devastating effect on her mental and physical growth. In cross-examination, he deposed at para-17 that Sub-Divisional Hospital of Champua is at a distance of about 4 to 5 K.Ms. from the father’s house of petitioner-respondent. He further categorically stated that Poonam, at present, is in custody of his mother, his wife, the wife of his younger brother and other family members. He also denied to the suggestion that Poonam is forcibly separated from the petitioner-respondent. In para-9 of his deposition, O.P.W. 1 categorically stated that the baby daughter is being properly nourished in consultation with a Child Specialist and Dietician at Keonjhar Town and is growing fast in physical and mental activities. He further categorically stated that Poonam would be deprived of basic facilities and proper medical care in the custody of petitioner-respondent. In a tiny village where the petitioner-respondent resides, there is dearth of facilities of education, medical care etc. and the child would ultimately languish in the custody of petitioner-respondent and her relations, and her mental and physical growth would be stalled. The statements of O.P.W. 1 have not been disturbed in the cross-examination and almost remained unchallenged more particularly with regard to medical and educational facilities available to the child. O.P.W. 2, who is the father of the child and husband of petitioner-respondent, in his deposition at para-2 deposed that after delivery of their daughter, namely, Poonam, the petitioner-respondent being allergic towards the child refused to breast feed her. At his insistence to breast feed the child, she used to pick up quarrels with him and did not take care of the daughter. She even in a fit of tamper once left for her parental home abandoning the child and after much persuasion, she came back after one and half months. The O.P.W. 2 categorically deposed in para-7 that after birth of his daughter, the petitioner-respondent grossly neglected her and never tried to breast feed the child. On the other hand, his (O.P.W. 2’s) mother (appellant No. 4) has been taking utmost care of the child. He further deposed that the Baby under the care of the opposite parties-appellants and consultation by Child Specialist and Dietician at Keonjhar Town is growing fast and she would be deprived of the basic facilities and proper medical care and educational facilities in the custody of the petitioner-respondent. In the village of petitioner-respondent, which is far from educational and medical facilities, the child would languish in her custody. He further deposed at para-8 that he is running his own business in Keonjhar Town and residing at Keionjhar with his family and his daughter. In the company of his family members and under their care and custody, his daughter (Poonam) is growing both mentally and physically very fast. In case the custody of his daughter (Poonam) is given to the petitioner-respondent, her future prospect would be bleak and would have devastating effect on her growth and well being. In cross-examination, not a single question with regard to care, nourishment and welfare of the child was put to O.P.W. 2, who is none other than the father of minor child. Thus, his statements with regard to care, nourishment and welfare of the child remained uncontroverted. Only formal suggestion was put to O.P.W. 2 to the effect that he had forcibly taken the child from the petitioner-respondent and compelled the petitioner-respondent to leave his house, to which the O.P.W. 2 denied. He also denied to the suggestion that because of him, Poonam is debarred from the love of her mother. The O.P.W. 3, who is the father-in-law of petitioner-respondent and grandfather of the child, also stated in his deposition at para-3 that his daughter in law was allergic to the child and refused to take care of the Baby and breastfeed her. Corroborating the statement of O.P.W. 3, he also deposed that because of behavior of petitioner-respondent, the opposite parties-appellants decided that the appellant No. 4, who is the grandmother of the child, would stay with them at Balibandh residence for better nourishment and proper care of new born. In spite of ill-treatment at the hands of petitioner-respondent, she remained there and took utmost care of the new born. She also corroborated the statements of O.P.Ws. 1 and 2 to the effect that the child (Poonam) under their care and consultation with Child Specialist and Dietician at Keonhar is growing fast both mentally and physically. There is no facility of education and health care in the village of petitioner-respondent and as such, the child would languish in the custody of petitioner-respondent, if the custody of the child is given to her. Such statements on oath were also not disturbed in the cross-examination. Learned trial court completely ignored to consider the aforesaid evidence with regard to care, nourishment and welfare of the child and in fact there is no finding on the welfare of the child in the impugned order, which is the paramount consideration to determine the custody of the child.
11. The learned trial court while adjudicating the petition of the petitioner-respondent for custody of the child had discussed a lot about the mental health of the petitioner-respondent. The opposite parties-appellants in their show cause have contended that the petitioner-respondent is suffering from bipolar disorder, a kind of mental illness and incapable of taking care of the child. The petitioner-respondent, in fact, was diagnosed bipolar disorder by O.P.W. 4, who was working as Assistant Surgeon of District Headquarters Hospital at Keonjhar and was also a Consultant Neuro Psychiatrist. In support of their case, the opposite parties-appellants had filed documents, i.e., Ext. A-Outdoor Medical Ticket dated 25.7.2012 and Ext. B-Medicine Prescription of O.P.W. 4 granted on 25.7.2012. These documents were never challenged or denied by the petitioner-respondent. On the other hand, the petitioner-respondent in her deposition has categorically admitted that she had been to O.P.W. 4 who diagnosed bipolar disorder. The evidence of OPW-4 was not relied upon on the ground that diagnosis of mental condition of petitioner-respondent was provisional, differential, suspected and probable. Thus, the same was not conclusive. Moreover, the learned trial court held that there is nothing to show that the petitioner-respondent is recently suffering from any kind of mental illness. To this, it can only be said that the petitioner-respondent was diagnosed bipolar disorder, a kind of mental illness by a Consultant of Neuro Psychiatrist who advised to take the petitioner-respondent to Ranchi for better treatment. It is the specific case of the opposite parties-appellants that she resisted to go to Ranchi for better treatment which she never denied. Moreover, there is nothing on record to disbelieve the opinion given by a Doctor who has been examined as O.P.W. 4. The same was also not challenged. The decision of Hon’ble Supreme Court in the case of Rajesh Kumar (supra) is distinguishable for the reason that the Hon’ble Supreme Court has dealt with an issue of personality disorder with no medical problem. But, in the case at hand, the petitioner-respondents is suffering from bipolar disorder, a kind of mental disease. Hence, the finding of the learned trial court with regard to mental health of the petitioner-respondent is vulnerable.
The second contention of the opposite parties-appellants was that the petitioner-respondent is living in a remote village at Pattajayanti in the State of Jharkhand and the opposite parties-appellants are living at District Headquarter at Keonjhar which has better avenues compared to Pattajayanti. However, while discussing the same, the learned trial court misdirected himself and concentrated only on the question with regard to financial condition of petitioner-respondent vis-à-vis the opposite parties-appellants, which is insignificant for determining the custody of the child Thereafter, it relied on various case laws and legal provisions but failed to discuss as to how ratio decided in the said cases are relevant to the case at hand. The financial condition of the mother cannot be a ground to refuse custody of the child to her. Because, it is the duty of the father to maintain his legitimate child. He has to provide maintenance for the child. As stated earlier, there is no finding with regard to the welfare of the child.
At this stage, it is profitable to adopt the language of Section 17 of the Guardians and Wards Act, 1890 for determination of the question of ‘welfare’ of the minor, which reads as follows:
“17. Matter to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Courts shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
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(5) The Court shall not appoint or declare any person to be a guardian against his will.”
Sub-section (2) of Section 17 provides that Court while considering the question of ‘welfare’ of the child shall have regard to the age, sex and religion of the minor, so also the character and capacity of the proposed guardian and his nearness of kin to the minor etc. The same is also the consideration while determining the question of ‘welfare’ for custody of the child. Thus, broadly the following questions shall be considered along with others for determining ‘welfare’ of the child. Those are:
a) Who would have the better care and better consideration for the welfare of the minor;
b) Where he or she is likely to be happier;
c) By whom mental and physical development and comfort of the child can be better looked after;
d) Who has not only the desire but a determination, not only in concept but also capacity to provide for a better education and medical facility as well as uninterrupted nourishment of the child; And
e) Who would be available by the side of the child at the time of his/her need for mental as well as physical support and can provide proper care, counseling and give love and affection as well as protection and patting up;
In the case of Smt. Meera Dei v. Shyamsundar Agrawalla, reported in MANU/OR/0016/1985 : AIR 1985 Orissa 65, this Court held as follows:
“10. Some arguments were advanced from both the sides regarding power and jurisdiction of the Court to pass orders regarding education and spending holidays etc. by the minor while deciding an application under Section 25 of the Guardians and Wards Act Whatever doubt on these questions might have been there previously the same has been set at rest by the Supreme Court, in the case of Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka MANU/SC/0149/1982 : AIR 1982 SC 1276 wherein it has been held that while considering an application under Section 25 of the Act it is open to the Court to make any arrangement relating to the minor which he considers to be in the best interest of minor and in such a case it is the welfare of the minor which alone is the foremost consideration and not the rights of the parents. Neither the father nor the mother has an indefeasible right to have custody of the minor or to decide his future as he or she likes. The Court’s duty in this regard is onerous and the Court is required to discharge the same to the best of its ability in the interest of minor.”
Following the ratio decided in the aforesaid case, this Court in the case of Shyama Prasad Tripathy & Ors. v. Aishwarya Satpathy, reported in MANU/OR/0491/2011 : 2011 (II) ILR- CUT- 806 held as follows:
“15 .This past conduct though is not the sole criteria to determine the attitude of the respondent towards her family but is indicative of her attitude towards raising a family. Furthermore, when she was residing in Chennai alone, the child was less than three years of age and she admitted him to a Play School, which does not appear to be reasonable to us. Admittedly, we find that the child is with the appellants for the last two years, at Bhubaneswar and, therefore, it can safely be presumed that he has accustomed with the lifestyle of Bhubaneswar with his father and grandparents and at this juncture passing an order to remove him from Bhubaneswar to Bangalore will have an adverse psychological impact on the minor child.”
These are vital aspects to be considered while determining the ‘welfare’ of the child for custody. Admittedly, learned Civil Judge did not at all consider these vital aspects for determining the custody of a child and delved into less important aspects, which have already been discussed above.
12. Admittedly, the child, namely, Poonam, is staying at Keonjhar and is prosecuting her studies as revealed by the pleadings and oral testimony of the parties. The petitioner-respondent is staying with her parents, whereas there are three adult female members in the family of opposite parties-appellants to look after the child including other members, namely, the father, grandfather, and uncle of the child. The child is at present staying at District Headquarter at Keonjhar where better amenities and facilities with regard to education and health care are available in comparison to that of village Pattajayanti. The Sub-Divisional Hospital at Champua is about 4 to 5 K.Ms. away from the village where the petitioner-respondent resides, whereas the child is at present staying at Keonjhar where the District Headquarter Hospital situates at a stone throw distance. The petitioner-respondent never disputes the aforesaid fact nor does she complain of any ill-treatment or negligence on the part of the appellants in taking care, nourishment and welfare of the child. Admittedly, the child has stayed with her father and other family members for more than four years and has become compatible to the surroundings and situations. The Hon’ble Supreme Court in the case of Mausami Moitra Ganguli v. Jayanti Ganguli, reported in MANU/SC/7671/2008 : AIR 2008 SC 2262, held that dislocation of the child from the place where he has grown-up would not only impede his schooling but also cause emotional strain and depression on him.
Hon’ble Supreme Court in the case of Gaurav Nagpal Vs. Sumedha Nagpal, reported in MANU/SC/8279/2008 : AIR 2009 SC 557 held as follows:-
“42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on a legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli’s case (supra), the Court has to due weightage to the child’s ordinary contentment, health, education, intellectual development, and favorable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
43. The word ‘welfare’ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.”
13. In view of the discussions made above and the submissions of the learned counsel for the parties, this Court while setting aside the impugned order feels it proper that welfare of the child would be best served if she continuous to stay in custody of her father. No fruitful purpose will be served by giving custody of the child to the mother only for the reason that Section 6 of the Act, 1956 gives her a legal right to be the custodian of the child as the child has not attained the age of five years. It is further directed that the petitioner-respondent as and when desires may visit the child at the place where the child resides without disturbing the schooling and normal routine of the child.
14. Accordingly, the appeal is allowed, but in the circumstances, there shall be no order as to costs.