Thrity Hoshie Dolikuka vs Hoshiam Shavaksha Dolikuka B on 4 August, 1982

    PETITIONER:

THRITY HOSHIE DOLIKUKA

 Vs.

RESPONDENT:

HOSHIAM SHAVAKSHA DOLIKUKA B

DATE OF JUDGMENT04/08/1982

BENCH:

SEN, AMARENDRA NATH (J)

BENCH:

SEN, AMARENDRA NATH (J)

PATHAK, R.S.

CITATION:

 1982 AIR 1276 1983 SCR (1) 49

 1982 SCC (2) 544 1982 SCALE (1)608

ACT:

     Law relating to minor child-custody of the minor daughter aged 11 years,
whether to be with the mother of the father Duty of the Court-Whether it is
obligatory on the part of the Court to interview the minor for ascertaining the
minor's wishes and implement the same-Parsi Marriage and Divorce Act, 1936,
Sections 49; Guardians and Wards Act, 1890 : Sections 7 to 17.

HEADNOTE:

     The appellant and the respondent belong to the Parsi community and they
were married in Bombay on the 27th December 1960 according to the rights and
ceremonies of the Zoroastrian religion and custom. A son was born to them on the
6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and
aged 11 years. Irreconcilable difference and embittered relationship between the
appellant and the respondent had led to the filing of Suit No. 14 of 1979. by
the appellant mother, for judicial separation. In the several applications made
by the parents for the custody of the child, the learned judges of the High
Court, before whom the said applications came up for disposals interviewed the
children separately and in the presence of the parents and passed appropriate
and equitable orders, keeping in the forefront the welfare of the minor
children. The boy bas now become a major as per the Parsi Marriage and Divorce
Act and tho question of his custody does not arise. The custody of the minor
daughter was ultimately given to the father as per the order of tho Division
Bench of the Bombay High Court dated October 16,1981, Hence the appeal by the
appellant mother, after obtaining Special Leave of the Court.

     Allowing the appeal, the Court.

^

     HELD: 1. It is well settled that any matter concerning a minor, has to be
considered and decided only from the point of view of the welfare and interest
of the minor, the Court has a Special responsibility and it is the duty of the
Court to consider the welfare of the minor and to protect the minor's interest.
In considering the question of custody of a minor, the Court has to be guided by
the only consideration of the welfare of the minor. [79 B-D] Rosi Jocob v. Jacob
A. Chakrammakkal [1973] 3 S.C.R. 918 followed. H

     2:1 There is no duty or obligation cast on the part of the Court to
interview the minor for ascertaining the wishes of the minor before deciding the
question

50

of the child custody under section 49 of the Parsi Marriage and Divorce Act,
1936. [81 F-G]

     2:2 It is true that Section 17(3) of the Guardians and Wards Act, 1890
speaks of the consideration by the court of the preference of the child "if the
minor is old enough to form an intelligent preference". The instant case, is not
one under the Guardian of Wards Act 1890. [83 B-C] 2:3 However, there cannot be
any manner of doubt as the Court's power of entertaining any minor for
ascertaining the wishes of the minor, if the Court consider it so necessary for
its own satisfaction in dealing with the question relating to the custody of the
minor. [83 D] In the facts and circumstances of the case, the minor is not fit
to form an intelligent preference which may be taken into consideration in
deciding her welfare. The report of the Social Welfare Expert records that the
interviews, the minor girl faced before the several judges cast a gloom on the
sensitive mind of the tender girl and caused a lot of strain and depression on
her. Torn between her love for both her parents and the acrimonious dispute
between them resulting in the minor being dragged from court to court is bound
to have effected the sensitive mind of the minor girl. Though the girl is quite
bright and intelligent as recorded by the learned judges of the Bombay High
Court in their orders after their interviews with the girl who is of a tender
age and is placed in a very delicate and embarrassing situation because of the
unfortunate relationship and litigation between her parents for both of whom she
has great deal of affection, she is not in a position to express any intelligent
preference which will be conducive to her interest and welfare. Mature thinking
is indeed necessary in such a situation to decide as to what will ensure to her
benefit and welfare Any child who is placed in such an unfortunate position. can
hardly have the capacity to express an intelligent preference which may require
the court's consideration to decide what should be the course to be adopted for
the child's welfare. Therefore, sending for the minor and interviewing her in
the present case, will not only not serve any useful purpose but will have the
effect of creating further depression and demoralisation in her mind. [83 E-H,
84 A-D]

     3:1 on a consideration of all the facts and circumstances of the case and
bearing in mind the paramount consideration of the welfare of the child, the
child's interest and welfare will be best served by removing her from the
influence of home life and by directing that she should continue to remain in
the boarding school, which is admittedly a good institution.

     3:2 Home influence plays a very important role in shaping the life of every
child. Influence of a happy home where the children are brought up under the
affectionate guidance of their parents and other relations, all concerned with
the welfare of the children no doubt, enables the children to lead a normal
healthy life and materially contributes to their welfare. In a happy home, the
children are free from any kind of unhappy tension and psychological strain and
they grow up in a healthy environment where their interests and welfare are
properly looked after by their parents. In such a case, the court is normally
not called upon to interfere and to consider the welfare of the children and the
welfare of the children is well taken care of by their parents whose primary
concern is to 51

see their interest and welfare. It is also no doubt true that the children who
stay at home with their parents and do not go to boarding school may also be
very well disciplined in life and may have a very healthy happy and normal
growth, while staying at home. Therefore, in the interest of the children whom
they have brought into existence and who are innocent, every husband and wife
should try to compose their differences which are bound to be in any house. Even
when any husband and wife who are not in a position to reconcile their
differences and are compelled to part, they should part in a way as will cause s
least possible mischief to the children. [84 E-H, 85 H, 86 E]

     When the atmosphere in a house vitiated and rendered surcharged with
tension as a result of bitter squabbles between husband and wife, causes misery
and unhappiness to a child, who has to live in constant psychological strain in
such a broken home in view of the bitter relationship between her parents fo
each of whom she has great affection, the healthy and normal growth of their
child is to be seriously affected. In the interest and for the welfare of the
child in such a case, the child is necessarily to be removed from such unhealthy
environment of a broken home surcharged with tension. In such a case, the proper
and best way or serving the interest and the welfare of the child will be to
remove the child from such atmosphere of acrimony and tension and to put the
child in a place where the embittered relationship between her parents does not
easily and constantly affect her tender mind. [88 C-E] 3:3 The question of the
custody of the child must necessarily be considered from the only view point of
tho welfare of the child. The person to whom tho custody of the child has to be
entrusted will necessarily be answerable to the school for payment of all
charges and expenses of the child and also in relation to any matter concerning
the child in her school life. [89 D-E]

     In the instant cases, it is clear that the father is not inclined to allow
the child to remain in a Boarding institution, If the custody be left to him,
the - father iq view of the disinclination to allow the child to remain in the
Boarding - institution, may be in a position to create difficulties for the
child for remaining in the institution by non-payment of fees or otherwise.' The
'father is obsessed, with the idea of obtaining exclusive control of the
daughter and keeping the - daughter with him in his house. [89 B-F] F

     It is not in dispute and it cannot be disputed that the mother has a great
deal of affection for her daughter in her heart and to serve the best interest
of the daughter the mother is prepared to make any necessary sacrifice for the
welfare of the daughter. The mother, at considerable expense, had put her in
Kimmins Boarding School, Panchghani, which is recognised to be a very good
institution She has been paying for all the expenses of the daughter at the G'
school. She has steady income out of which she is in a position to meet all ,
the expenses of her daughter at the school. The mother also does not suffer from
any obsession regarding posession of the girl and she wants her daughter to lead
a healthy normal life essential for her proper growth and development. The
mother is very anxious that the child should continue to remain in the Boarding;
School. The girl now aged about 11 years, is reaching an age when she will need
the guidance of the mother. Therefore, the custody of the girl should be given
to the mother. [89 F-H, 90 A-B] 52

JUDGMENT:

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3032 of 1981.

     Appeal by special leave from the judgment and order dated the 16th October,
1981 of the Bombay High Court in Appeal No. 102 of 1981.

     V. S. Desai, B. R. Agarwala and M.N. Shroff for the Appellant.

     M C. Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and T. Sridharan for the
Respondent.

     The Judgment of the Court was delivered by AMARENDRA NATH SEN, J. Whether
the father or the mother should have the custody of their minor daughter now
aged 11 years, is the question which falls for consideration in this appeal by
special leave granted by this Court. Irreconciliable differences between the
father and the mother and embittered relationship between the two have resulted
in a sad protracted litigation. Unfortunately, in the various proceedings in
Court between the father and the mother, the child had become the central figure
and the child had appeared in Court on occasions for being interviewed by the
learned Judges of the Bombay High Court. The child, it appears, is quite bright
and rather sensitive. The unfortunate litigation between the father and the
mother appears to have badly affected the normal and healthy growth of the
child. The situation appears to be all the more unfortunate, as the father and
the mother both love the child dearly and the child is fond of both her parents.
It is, indeed, said that the parents who are both genuinely fond of their
daughter and have her welfare in their hearts, could not compose their
differences and work out a solution which would be most conducive to the welfare
of the child. The responsibility has, therefore, devolved on the Court. The task
of the Court is indeed difficult and delicate. The Court in this case, is
concerned with a human problem affecting the future of a little girl. We feel
that in a case of this nature a decision of the Court however, may not succeed
in solving the real problem and in achieving the desired goal. Anyway, as all
attempts by Courts to bring about an agreed solution of the problem to the
satisfaction of all concerned, have failed the Court must proceed to discharge
its duty, however painful and delicate that task may be.

53

We shall now proceed to state some of the broad facts relevant A for the purpose
of the disposal of this case. The appellant who is the mother of the child and
the Respondent who is the father of the child, both belong to the Parsi
Community and they were married in Bombay on the 27th December, 1960 according
to the rights and ceremonies of the Zoroastrian religion and custom. A son was
born to them on the 6th of May, 1965. The son who is called Shiavux is now more
than 16 years old. A daughter was born to the appellant and the respondent on
the 18th April, 1971. The daughter is named Gospi and she is now nearly 11 years
of age. In this appeal we are concerned with the custody of this girl Gospi. The
appellant who is the mother and whom we shall describe in the judgment either as
the appellant or the mother, has been in the employment of Tatas for a long time
and she now works as a confidential secretary to one of the Directors and gets a
salary of Rs. 2500 per month. The respondent obtained training in architectural
engineering and had obtained a diploma. The respondent had also obtained a
licence from the authorities to enable him to function as an architect. The
respondent had worked with various concerns from time to time and had also
worked at times of his own as an architect. The respondent at present owns a
taxi which he plies himself. According to the respondent he makes a gross
earning on average of some- thing between Rs. 125 to Rs. 150 per day, by plying
his taxi. After the marriage on 27.12.1960 the respondent set up their
matrimonial home in Mount Villas at Bandra, the tenancy of which stood in the
name of the appellant. As the appellant is an employee of Tatas, the tenancy was
granted to her by Ratan Tata Trust which owns the premises. It appears that
unfortunate differences arose between the appellant and the respondent and the
appellant left the matrimonial home on 21.5.1978. It is indeed unfortunate that
the parents could not reconcile their differences at least in the interest of
their children and on 21.4.1979 the appellant filed a suit being suit No. 14 of
1979 for judicial separation. On 24.4.1979 the appellant in her suit No. 1411979
made an application for getting the custody of both the children i.e. the son
Shiavux and daughter Gospi. By consent of the parties on 27.4.1979, an interim
order was passed on the said application and the said order is to following
effect: "The children to spend the week-ends commencing from Saturday the 28th
April 1979 with the Petitioner and

54

     stay over-night with the petitioner on Saturdays and Sundays. Defendant to
send the children to the Petitioner - at 10.00 a.m. On Saturdays. Petitioner to
return the children to the defendant by 9.00 a.m. On Mondays.

   Liberty to the Petitioner to take the children out of Bombay to Lonavla or
Matheran for a fortnight commencing from 5th May 1979 and ending 20th May, 1979.
Petitioner undertakes through her learned counsel to bring the children back to
Bombay on 20th May 1979 and to give written intimation thereof forthwith to the
Prothonotary and Senior Master. The Petitioner shall return the children to the
defendant on 21st May 1979 by 9 a.m.

   Liberty to the defendant to take the children out of Bombay to Matheran or
Lonavla from 22nd May 1979 till 3rd June 1979 and to bring the children back to
Bombay. on or before 3rd June.

   Should however the defendant not desire to take the children out of Bombay
from 22nd May till 3rd June 1979, the Petitioner shall be at liberty to take the
Children out of Bombay during this period and shall return the children to the
defendant by 9.00 a.m. On 4th. Should however neither the petitioner nor the
defendant be in a position to take the children out of Bombay from 22nd May till
3rd June, the children shall remain with the defendant and the petitioner shall
have week-end access to the children in the manner stated in clause (I) above.

   In the event of the defendant being unable to take the children out of Bombay
from '2nd May, the defendant shall give written intimation of his liability to
do so to the petitioner's advocate on or before 15th May, 1979 in which event
the petitioner shall be at liberty to keep the - children with her either at
Lonavla or Matheran till 3rd June 1979 and shall return the children to the
defendant by 9.00 a.m. On 4th June 1979.

   This arrangement shall be till 15th June 1979. Liberty to the Defendant to
take the children to Undwada and Shirdi between 4th and 8th June. 1979". 55

     The application came up for final disposal before Lentin, J. The learned
Judge interviewed the children in his chambers before passing his order on the
said application on 28.6.1979. As this happens to be the first order passed by
the Court after interviewing and speaking to the children, it will be
appropriate to set out the order which reads: "I have talked to the children in
my chambers. The boy completed 14 years of age and the girl has completed 8
years of age. I have found both the children extremely intelligent and sensible.
Both appear to be distressed at the present state of acrimony between their
parents. Both have expressed their desire to spend their time with each of the
parents since it is not possible for them, in view of the-present state of
affairs to spend their time with both the parents at the same time.

   After having talked to the children and after having ascertained their
wishes, I pass the following order for access in the interest of both the
children. The father shall have access to the children from Monday to Friday and
the mother shall have access to . the children during the week-ends, viz.
Saturday and Sunday.

   The children shall be sent by the father to the mother directly from School
on Saturday and the children shall remain with the mother till Monday morning
when the mother will leave the children or arrange for them to be p left at the
school. The mother shall have access to the children on public holidays from
10.00 a.m. Of such holiday till the following morning when she will leave or
arrange for the children to be left at the school. It is clarified that though
Monday the 27th of August, 1979 is a Public Holiday (Navroz Day) the children
shall spend the 27th August 1979 with the father. The mother shall return the
children to the father's residence by 11.00 a.m. On the 27th day of August
1979,"

56

Though the order passed by the learned Judge was in the circumstances a very
proper order passed in expectation that the order would be worked out smoothly
to the satisfaction of all concerned and would serve for the time being the best
interest of the children. Yet, as subsequent events go to indicate, the order
failed to achieve the purpose mainly in view of the attitude of the father who
was not willing to part with the children and to allow them to stay with the
mother. It appears that the father had made an application for variation of the
order passed by Lentin J. alleging in the petition that the children were not
willing to live with their mother on Saturdays and Sundays as ordered by the
Court. It further appears that no further order was made on the said application
of the father. A copy of this order unfortunately does not form part of the
records. There does not, however, appear to be any dispute that Mehta, J.
disposed of this application after speaking to the children in chambers on
10.8.1979.

     On 24.4.1980, the appellant took out chamber summons for an order against
the respondent for allowing her access to the minor children Shiavux and Gospi
by having them with her from 16th May, 1980 to 15th June 1980 and for half the
period of each subsequent school/college vacation in addition to having them
with her on week-ends and holidays, as the respondent had refused to give such
access to the appellant. Agarwal, J. who heard the chamber summons spoke to the
children alone in his chambers and passed the following order on 2.5.1980.

   "During the current Summer Vacation beginning from 15th April 1980 and ending
on 15th June, 1980 the children are already with the father from 15th April,
1980 and they will continue to live with the father till 14th May 1980. On 15th
May 1980 the father will hand over the children to their mother and from 15th
May 1980 till 15th June 1980 the children will remain with their mother. On 15th
June 1980, she will bring back the children to the house of their father. The
rest of the arrangement between the parties as per order dated 28th June, 1979
will continue. It may be noted that I have ascertained the wishes of the
children before passing the present order. Liberty to the mother to take the
children outside Bombay. if she so desires.

57

   The present arrangement of the parents sharing the company of the children
during the vacation to continue in the coming October and December vacations on
the basis of the children remaining with the father in the first half of the
vacation and with mother in the other half.

   This arrangement of sharing the company of the children during the vacation
will also apply for coming years pending the hearing and final disposal of the
suit.

   It is clarified that the order, whereby the children go - to their mother
every week end, will not be effective during the vacation period as the children
for the first half of the vacation will be exclusively with the father and the
other half exclusively with the mother.

   Chamber Summons absolute accordingly with no order as to costs." D

It may be mentioned that the daughter Gospi had been admitted to Carmel Convent
High School in the K.G. Class and she had been studying in that School. Shiavux
was a student of St. Anne's High School. It appears that on 1 5.6.1980, the
Respondent without informing the appellant and without her knowledge or consent
removed Gospi from Carmel Convent High School and put her in St. Anne's High
School. On the 20th June, 1980 the appellant made an application in her suit for
an order for custody of her two children and also for an order that the child
Gospi be forthwith . . removed from St. Anne's High School and be put in Carmel
Con vent High School. The said application was disposed by Kania, J. on the 9th
of July 1980 and the learned Judge who had also spoken to Gospi was pleased to
pass the following order: "This is a petition for the custody of the two minor
children and for the decision of the question as to whether the minor daughter
Gospi should be removed from St. Anne's High School where she has just been got
admitted by her father. As far as the question of final custody is . concerned,
it appears, particularly in view of the orders passed earlier by Lentin J. and
Agarwal, J. that that question can be more conveniently decided when the suit is
disposed of. This position is accepted by both the parties,

58

   As far as the question of change of school is concerned, it is regrettable
that the respondent husband has changed the minor's school from Apostolic Carmel
Convent High School to St. Anne School without previously informing the
petitioner as he should have done. However, after talking to the child, I find
that she is anxious to continue . in St.. Anne's School at present. Moreover,
she has already been admitted to that school.' In view of this I see no reason
why the respondent should be directed to remove her from St. Anne's School and
to try to get her re admitted to Carmel Convent High School. If the child is not
very happy in the new school i.e. St. Anne's School the question of changing her
school and getting her admitted in Carmel Convent High School can be considered
at the end of the academic year. No order as to costs."

On 9.9.1980, the Respondent filed a contempt application against the appellant
complaining of the violation of the order of the Court in the matter of handing
over of the girl Gospi to him. The said application of the respondent was
disposed of by Lentin, J. On the 22.9.1980. The learned Judge talked to the
children together and also individually and it appears that the learned Judge
had a fairly long conversation with the girl Gospi for about 40 minutes The
learned Judge thereafter passed an order on the said contempt application of the
respondent to the following effect;

   "I have talked to the children together and individually. From my
conversation with the daughter (aged 9) which extended to well nigh 40 minutes.
I do not think that she has either been 'brainwashed', 'tutored' or
'pressurised', into not going to the father. She is undergoing a tremendous
mental and emotional upheaval which finds her bewildered and totally unhappy at
the increasing acrimony between her parents. She desperately needs her mother
and cannot bear to be parted from her and it is not mere childish pique, or
'brainwashing' or 'tutoring' that is behind it. I am aware that normally a
parent is given access to his or her child. However, in this case, I fear that
if this little girl who is mentally and emotionally disturbed, is compelled to
go to her father against her wishes,. the consequences on her well being and her
mind in its present state are predictable and will be disastrous.

59

   Her conversation with me did not reveal any intention A on the part of the
mother to want to flout my order of 28th June, 1979 as urged on behalf of the
father. If at all, it showed some resentment on the child's part against the
mother for trying to induce her to go to her father against her will. The
husband's contention that the wife should have applied for modification of that
order, does not take into account (i) that she was trying to persuade the girl
to go to her father, (ii) that this at best is a technical breach, and (iii)
that confining the wife to civil prison, or otherwise punishing her, would in
this case be no solution to what is basically a human problem, more so when
looked at from the view of the child who is intelligent enough to speak up for
herself and whose interest and well being must be paramount consideration.

   Taking all the facts and circumstances into consideration, I pass no order on
the motion with no order as to costs. I suspend my earlier order dated 20th
June, 1979 to the extent that it gives the husband access to the girl from
Mondays to Fridays and clarify that until the disposal of the suit which, I am
told, is ripe for hearing, the mother shall have uninterrupted access to the
girl and shall not be bound to send the child to the father against the wishes
of the child. For the mental and emotional well being of his child, the husband
should in good grace make this sacrifice. It is further clarified, if
clarification is at all necessary, that the implication of this order is that
the husband shall not, until the disposal of the suit, visit the girl at her
school, for such visits she dreads, resulting in spells of nausea and black-outs
and which visits she finds upsetting and humiliating before her friends before
whom she naturally wants to maintain the facade that all is well between her
parents." .. . . .

     Against the said order of Lentin, J. the Respondent filed an e appeal.
During the pendency of the appeal, the suit filed by the appellant and the
counter claim filed in the suit by the respondent came up for final hearing. It
may be noted that in the counter claim filed by the respondent in the said suit
of the appellant, the respondent had made certain allegations against the
appellant. On 10. 11.1980, the suit and the counter claim were disposed of. By
the decree passed in the suit filed by the appellant. divorce was granted on the

60

ground of desertion of the appellant and the allegation of cruelty made by the
appellant against the husband, the respondent, was withdrawn by the appellant.
The respondent had also withdrawn all the allegations made against the appellant
and the decree for divorce was passed in favour of the appellant, as already
noted, only on the ground of desertion. A consent order was passed with regard
to other reliefs and under the consent order, the appellant got back her flat in
Mount Villas from which she was earlier ousted. The appeal filed by the
respondent against the order of Lentin J. dated 22-9-1980 was also with drawn,
and it was agreed that the question of custody of the children would be decided
by the Court on a petition for custody to be filed by either of the parties. On
3-12-1980, the respondent filed a petition for custody of. both the children.
Since the son Shiavux would complete 16 years of age is May, 1980, and was
outside the jurisdiction of Parsi Matrimonial Court, the appellant could not
resist the respondent's prayer for custody of Shiavux and the appellant
contested the respondents prayer for custody of daughter Gospi. The said custody
petition of the respondent came to be heard by Diashaw Mehta, J. and the learned
Judge passed an order directing the custody of the children to be given to the
father. It is desirable to set out the following,, observations of the learned
Judge while passing his order on the custody application. The learned Judge has
observed: "I have interviewed both the minor children individually and also in
the presence of each of the parents. I have also talked to the petitioner and
the respondent in the presence of the children. I consider both the petitioner
as well as the respondent as persons capable of looking after the welfare of
their children. The only hurdle in the way of the respondent was that she was
not available to the minor Gospi for most of the day after the child returned
from School at about 1.00 p.m. and tilt 7.00 p.m. The minor during this period
was looked after by Mr. and Mrs. Kotwal. This, to my mind is an unfortunate
situation. However, benevolent, hospitable and kind the neighbours be, I do not
see why the child should grow up on the charity of neighbours, particularly when
her own kith and kin were available, especially her brother Shiavux. I am
informed that Shiavux and Gospi have not met each other for the last six months.
I do not know how this situation has been allowed to arise, but I can only say
that it is most

61

     unfortunate. Both the brother and the sister appear to be A fond of each
other and have expressed their desire to live together. I would have willingly
given the custody of the minor Gospi to the mother, but for the fact that she is
not available to the minor for long hours of the day and again the child will be
left to be looked after by neighbours or servants. In the petitioner's house-
hold there are three sisters of the petitioner who can look after the welfare of
both Shiavux and Gospi in the absence of the Petitioner. At pointed out earlier,
one of the sisters is a qualified teacher and can look after the education of
the children.

   At this stage, I may advert to the conduct of Gospi during the forty-five
minutes that she was in my chamber. Almost throughout this period, Gospi kept
crying or sobbing or whining although there was no provocation to do so, and
this was so even in the presence of her mother, the Respondent. The child
appeared to be nervous and kept biting her nails. I had an occasion to meet
Gospi and Shiavux about a year ago when a Chamber Summons taken out by the
Respondent, was heard by me. At that time during my talks with both the
children, I found them to be intelligent, exhuberant and confident. They
expressed a desire to live with both the parents. The situation has changed
radically today. Gospi has developed an aversion for the father and expressed
her desire to live with the mother. On three different occasions she stated that
she was not tutored and brain-washed. It appears to me that the child is under
considerable mental pressure and at present she is not a normal child. It is
important to create an atmosphere where the child will live a normal and healthy
life. It will only be under such conditions that the child's progress at School
will improve. Between September, 1980 and today the child's education has been
neglected for some reason and this is evident from the fact that the child
failed in October 1980 Examination in three subjects. Normally I would have
given preference to the desire of the child and would have acceded to her
request. In the instant case, however, I do not think that it is in the interest
of Gospi to permit her to remain in the custody of the Respondent. The child has
been sadly neglected. If the child is to return to normalcy, it is very
necessary that she should be returned to the custody of the father.

62

     Such an arrangement will permit both the brother and the sister to grow up
together and it will allow both of them to take comfort and counsel from each
other. I consider this arrangement to be in the interest of both the children
Shiavux and Gospi.

   I, therefore, order that both the minors Shiavux and Gospi will remain in the
custody of the Petitioner till such time as they reach the age of majority i.e.
16 years. Both the minors will remain with the Petitioner during the course of
the week i.e. from Mondays till Fridays. The Petitioner will take the children
on Saturday moorings at 9.00 a.m. to the house of the Respondent and leave them
with her till Sunday 7.00 p.m. when the Respondent will hand over both the
minors back in the custody of the Petitioner. During the School vacations, half
the period of the vacation will be spent by the children with the Petitioner and
half with the Respondent by mutual arrangement. There will be no order as to
costs of the petition . Mrs. Ponda states that this order be stayed as her
clients desire to proceed further. This order will be stayed till 9.3.1981".

The appellant preferred an appeal on 6.3.1981 and the appellant also applied for
interim stay of the order passed by Mehta, J. It appears that an ad-interim stay
was granted by the Division Bench. On the 20.3.1981 a Division Bench consisting
of Madon and Khurdukar JJ. disposed of the said application in the following
terms:

   "Pending the hearing and final disposal of the appeal, the order dated
February 19, 1981 appealed against stayed as far as it relates to the minor
Gospi alone.

   Until the St. Annes High School in which the minor Gospi is at present
studying closes for the summer vacation, the Respondent to be entitled to take
the child to his residence on Thursdays from 9 a.m. till 8 p.m.

   The respondent, who is present in Court, gives an undertaking through his
advocate to return the child Gospi to the appellants residence each Thursday by
8 p.m.

63

   So far as the school vacations are concerned the A appellant to keep the
child Gospi with her for the first half of each vacation and the respondent to
keep the child for the second half of each vacation. The respondent to take the
child to his residence by 9 a.m. On-the first day of the second half of each
vacation and to return the child by 8 p.m. On the last day of the second half of
each vacation.

   The respondent who, as mentioned, earlier is present in Court, through his
Advocate gives an undertaking to take the child Gospi to the appellant's
residence and leave her there by 8 p.m. On the last day of the second half of
each vacation.

   We may record that we had seen the child Gospi in Chambers on March 10, 1981
and had found her to be an extremely bright and intelligent child. We may
further record that the child stated that she did not have any aversion to spend
the day with her father, namely, the respondent, but was greatly apprehensive
that if she did so, she would not be allowed to return her mother, namely, the
appellant, with whom she wanted Lo stay or that some application would be made
to the Court on behalf of the respondent for the purpose of not returning the
child to the appellant but to keep her with him.

   Notice of Motion made absolute in terms of prayer (c) also and the above
directions with respect to the Respondent's access on Thursdays during the
school terms and the order with respect to the sharing of school vacations also
to apply if the child Gospi gets re-admission in the Apostolic Carmel Convent
High School from the next academic year for the . school terms and vacations. If
the child Gospi does not get re-admission in the Apostolic Carmel Convent High
School but continues in the Anne High School, the above directions with respect
to the Respondent's access on Thursday. during the School terms and the sharing
of vacations to other school terms and vacations. Costs of this Notice of Motion
will be costs in the appeal".

64

As the respondent had not returned Gospi to the appellant, in terms of the order
and the undertaking given by the respondent to the Court, the appellant on
3.4.1981 orally applied to the Division Bench consisting of the same learned
Judges viz. Madon and Khurdakar, JJ. complaining of the breach of the
undertaking and on the said application the Court passed, inter alia, the
following order: "There were some allegations and counter- allegations made by
the parties against each other, into which we do not desire to go. We, in the
privacy of our chambers, talked to the child. We also talked separately to both
the parties. We have also heard both counsel. An unfortunate position in that
the child's final examination in the Vth standard in which she is studying
commences tomorrow and will finish on April 15, 1981. Purely bearing this
circumstance in mind, we permit the child to continue to be with the Respondent
until April 16, 1981. On that day we will give further directions in the matter.
We are passing this order purely in order not to make the child travel back and
forth between the residences during her examination. Mrs. Ponda on behalf of the
appellant states that the child's textbooks, exercise books, the school uniform,
etc. are at the appellant's place of residence and that the appellant will hand
them over to the Respondent. The Respondent will collect these articles from the
appellant's residence by 4 p.m. today. The matter will be on Board on April 16,
1981 for giving further directions. The parties and the child Gospi will remain
present in Court, and the Respondent will bring the child to Court on that day.
We also restrain, pending the giving of further directions, the respondent, his
servants, agents and family members from taking the child Gospi outside Bombay."

on 16.4.1981, the matter came up again before the same division Bench for final
orders and the Court was pleased to pass the following order:

65

   "Today in our Chamber we have heard both learned advocates as well as the
Respondent who wanted to address us. In course of arguments we pointed out to
Mr. Deshmukh, the learned Advocates for the respondent, that when we had talked
with the son of the marriage, Shiavux, as also with the daughter of the
marriage, Gospi, on March 10, 1981 we found Shiavux using semi- legal
pharaseology and words, while we found Gospi speaking naturally like any other
bright child of her age. We further pointed out that when we had talked with the
child Gospi on April 3, 1981 in our Chamber, we had found her using the same
type of pharaseology and words similar as those used by Shiavux and in speaking
of various family matters almost echoing what Shiavux had said. When we put this
to Mr. Deshmukh, the learned advocate for the Respondent,. he replied that that
was because time and again there was talk about this case in the Respondent's
house-hold. In our opinion, such talks taking place in the presence of a child
cannot be conducive to the happy or healthy psychological growth and development
of a child. Mr. Deshmukh, the learned Advocate for the Respondent further made a
request to us that though on March 20, 1981 we had directed that Gospi should
spend the first half of the vacation with the appellant, that part of the order
should be varied because Gospi had just finished her examinations yesterday and
had been till then in the grip of the examination fever and not able to go about
with the respondent, and, therefore, the respondent should be permitted to keep
Gospi for the first half of the vacation. At this, Mrs. Ponda, the learned
Advocate for the appellant, pointed out that during the middle of her
examination the respondent had taken Gospi to some person at Goregaon. Mr.
Deshmukh stated that the said person was known as 'Maiji' and the said person
stayed at Goregaon Tekdi and that several persons visit her, for they consider
her a holy woman. He further stated that Gospi was taken to the said Maiji to
seek her blessings. When we inquired, we were informed that Gospi had also been
taken to said Maiji on the 2nd day of April when she was staying with the
respondent in pursuance of order dated March 20, 1981, that is, before we had
talked to Gospi in the privacy of our chamber on April 3, 1981.

66

   Mr. Deshmukh also applied that we should reconsider our order passed on March
20, 1981 in so far as it related to re-admission of Gospi in the Apostolic
Carmel Convent High School and permit her to continue in the St. Annes High
School, which order we had passed after hearing elaborate arguments on the
point. In support of this application Mr. Deshmukh stated that if we were now to
talk with Gospi we would find that she has now changed her mind and does not
want to rejoin the Apostolic Carmel Convent High School. Assuming this is so,
this fact speaks for itself. We, therefore, reject the application also.

   In these circumstances, we feel that this is a fit case in which a home-study
should be directed to be made by social welfare expert to be appointed by- the
Court. For this purpose both parties have agreed to deposit with the
Prothonotary and Senior Master of this Court a sum of Rs. 300 each. Accordingly,
by consent we direct that each of the parties will deposit a sum of Rs. 300 with
the Prothonotary by 12 noon of April 18, 1981.

   Further directions with respect to to the home- study and the social welfare
expert by whom it is to be conducted will be given by us in our chamber at 11
a.m. On Monday, April 20, 1981. Meanwhile the appellant will take the child
Gospi with her to her residence. We reserve the giving of further directions
about the party with whom the child will spend the rest of the vacation and with
respect to the access of the other parent to the child. The further hearing of
this matter is adjourned to 11 a.m. On Monday, April 20, 1981 in Chambers as
part heard."

On 20.4.1981, the Court appointed Mrs. Clarice D'Souza B.A., B. Ed., holder of a
Diploma in Social Service Administration of the Tata Institute of Social
Sciences as a family expert to assist the Court in discharging its function in
the matter concerning, the child with the observations: "Parties are agreed that
every facility will be given to Mrs. D'Souza for her to interview privately the
child Gospi as also the parties themselves and the relatives and neighbours of
the parties if Mrs. D'Souza desires to interview them or any of them. Both
parties are further agreed

67

     that Mrs. D'Souza will be also at liberty to interview the A present as
well as the former teachers of the child. The parties are further agreed that
Mrs. D'Souza if she thinks it necessary to do so, will be at liberty to take the
child and keep her with herself at her place for such period or periods,
including overnight stays, as she thinks it necessary, to enable her to make a
detached and fair report to the Court. We may mention that Mrs. D'Souza has
stated to us that she does not desire any remuneration for the work she may do
in this connection. In our opinion, however, it would be unfair to Mrs. D'Souza
who in order to conduct this home study may have to travel from Colaba, where
she stays, to Bandara by taxi to conduct these interviews and may have to spend
at times the whole day in Bandara and may, therefore, also have to incur some
other expenses over her meals or refreshments. We do not see why Mrs. D'Souza
should go out of pocket. We will, therefore, decide after the home-study is
concluded the amount that should be paid to Mrs. D'Souza out of the moneys which
the parties have deposited with the Prothonotary and Senior Master mentioned
above. In the first instance, however, we direct the Prothonotary and Senior
Master to pay to Mrs. D'Souza towards the disbursement of the expenses which she
will have to incur, a sum of Rs. 300 out of the aggregate sum of Rs. 600
deposited by the parties. For the present we are adjourning the matter as part
heard in our Chamber at 2.45 p.m. On Tuesday the 28th April, 1981 for receiving
Mrs. D'Souza's report if it is ready. On that day in case the report is ready,
the parties are agreed that the Court should decide whether the report should be
treated as confidential or should be disclosed to the parties. In case the
report is not ready on that day, the parties are agreed that this matter should
be decided on a date to which the matter will be further adjourned for the
purpose of receiving the report and for deciding whether it should be kept
confidential or not.

   Meanwhile the child Gospi will continue to reside with her mother, the
appellant, and as mentioned in our order dated April 16, 1981 directions as to
with whom the child is

68

     to spend the rest of the vacation and the right of access of the other
parent to the child will be decided by us after receiving the report and after
hearing the advocates for the parties."

     It appears that the minor daughter Gospi who had been living with her
mother had been missing from her mother's place on 30.4.1981, resulting in a
great shock to the appellant. On the very same day the respondent applied to the
Division Bench consisting of the same learned Judges with an affidavit stating
that the child had come on her own to the house of the respondent who had
brought the child to Court to surrender her and abide by the Court's directions,
as he did not want to commit contempt of the Court. As on that date, the
appellant was not able to attend the Court because of her illness due to the
shock of her not being able to find Gospi, the Court passed an order that for
the time being the child Gospi would go with the Respondent and stay with him
until May, 1981 and on that date the Court would give further directions. On
13th May, 1981, the Court after considering the report of Mrs. Clarico D'Souza,
the family welfare expert appointed by the Court, passed the following order:

   "In the circumstances, set out above, we would have had no hesitation in
directing that the child Gospi should stay with her mother, the appellant,
throughout the summer vacation. However, an unfortunate thing is that the
appellant is working in the Tatas and therefore has to be away from home the
whole day except during week-ends, while the respondent, who drives his own
taxi, can always find time to contact Gospi in the course of the day and lure
her away. Bearing these factors in mind, we permit Gospi to stay with the
Respondent during the vacation. The respondent will, however, take Gospi and
leave her at the appellant's residence on every Friday at 8 p.m. and will
collect her from the appellant's residence every Monday by 8 a.m. during the
vacation. In our opinion best thing for Gospi would be to go to a boarding
school. However, we are sure that the respondent would so poison her mind
against any boarding school as to cause yet another psychological turmoil and
conflict in her mind. Mrs. D'Souza's report has also convinced us that it is
better for Gospi that she should be in Carmel Convent High School rather than
St. Annes High School, and that part of the

69

     order passed by us on March 20, 1981 will stand. During the school term the
appellant will be entitled to take Gospi to her residence straight from the
School, every Saturday and to keep her with her and to leave her in the School
on Monday mornings. During the rest of the days during the school term Gospi
will stay at the respondent's residence. The above directions will be operative
during - the pendency of appeal for all school terms and vacations."

While passing the said order, the Court in its judgment observed:-

   "We have very carefully considered the matter. Between the two spouses the
person who in our opinion would be best suited to bring up the child Gospi would
be the mother-namely, the appellant. Gospi is a girl about 10 years old, and she
needs a mother's care guidance and advice. The appellant has struck us as being
refined, mature and has been holding a steady job for the last twenty-one years
and is at present drawing a salary of Rs. 2,500 per month. She appeared
genuinely concerned with the interest and welfare of the minor. On the other
hand, it appears that the respondent is somewhat immature and erratic, and has
never been able to pursue any particular vocation steadily, and appears to
labour under a sense of inferiority complex vis-a- vis the appellant. It further
appears to us that the custody of the children is more a matter of prestige with
the respondent and is a weapon in his armoury to hurt the appellant with. As we
had almost on every occasion when the matter was before us talked with the child
in the privacy of our chambers, either before or after passing orders, we found
that when she was with the appellant she behaved as a normal and happy child,
but when she was with the respondent, her personality had totally changed and
she appeared to be under a strain."

The Court further observed:-

   "We find that Gospi has been tutored by the respondent to tell a number of
lies. According to what she is alleged to have said as set out in the said
affidavit, the appellant beats and ill treats her. At no stage has Gospi ever
mentioned this. On the contrary, she has always expressed how very happy she was
with

70

     her, the appellant. Mrs. D'Souza's report also bears this out. Another
instance is with respect to Gospi's version as to what happened in Court on
April, 16, 1981. As set out in the said affidavit she is alleged to have told
the respondent that when her mother, the appellant, came to take her away, she
was screaming and shouting and vomited on the Judge's table and that in spite of
that, her mother, the appellant, and her lawyer forcefully took her under
instructions from the judges. It is true that when we told Gospi to go with her
mother the appellant, she whimpered for some time and then threw out out-side
the chambers. That the conflict between the , two parents has greatly upset
Gospi emotionally, resulting in spells of nausea, has also been noticed by Mr.
Justice Lentin in his order passed on September 22, 1980. Further, it is clear
from Mrs. D'Souza's report that when the respondent had made Gospi change her
school and made her give up Carmel Convent High School and put her in St. Annes
High School, she was in the habit of vomiting in that school on the least
provocation, and she only adjusted herself in the school when she was reassured
by her teachers that she would go back to Carmel Convent High School from the
next academic year. After the initial fit of vomiting, Gospi went away with her
mother, the appellant, quite happy and content, and of her own accord she got
into the taxi along with her mother. We were watching from the corridor outside
our chambers, as we wished to observe Gospi's behaviour while she was going home
with the appellant, and in order to enable us to do so we had instructed that
the appellant and Gospi should leave the Court premises from the entrance facing
oval Maiden. We had also instructed one of our PAs. to accompany them and to
report to us, what is set out in the affidavit, therefore, cannot be anything
else but the tutoring of Gospi by the Respondent. We have already had occasion
to observe in an earlier order that this child who, while staying with the
appellant, was talking like a normal child, has started using semi-legal
phrases, which she was not doing previously."

     on the 9th of June, the Respondent made an application to the Division
Bench of the Bombay High Court for an order for modification of the earlier
order passed on the 20th of May, 1981 to the

71

extent that the child Gospi should not be compelled to go to Carmel Convent High
School but should be readmitted to St. Annes High School. During the pendency of
this application the appellant on the 6th July, 1981 also made an application to
the Division Bench for committal of the respondent for contempt of court for
violation of the order passed by the Division Bench on the 20th March, 1981.
Both these applications came up for hearing together on the 31st July, 1981 by
the Division Bench consisting of Madon and Sujata Manohar, JJ. The Division
Bench dismissed the application of the respondent for modification of the order
dated 20th March, 1981 and the division Bench passed an order on the contempt
application taken out by the appellant, committing the respondent to jail for a
period of three months and to a fine of Rs. 1000. The Division Bench further
directed that the custody of the minor daughter Gospi to be given to the
appellant mother pending final disposal of the appeal and the Division Bench
further ordered-"As observed in the both Mrs. D' Souza's report and in the order
of 13.5.1981 the best thing to do in order to restore Gospi to normalcy would be
for her to be in an atmosphere away from where she has been for the last almost
two years. The appellant will, therefore, be at liberty to place Gospi in any
boarding school of the appellant's choice outside Bombay. We also make it clear
that Gospi will spend all her School vacations with the appellant only without
any access to or interference from the respondent, his servants and agents
including the Respondent's brother and sister or any of them". The Division
Bench further suspended the execution of the punishment imposed on the
respondent by the said order for a period of four weeks from the date of the
order to enable the respondent to file an appeal in this Court, but refused to
stay the execution of the rest of the order. Mrs Sujata Manohar, JJ. who
delivered the judgment on behalf of the Bench, considered at great length the
various facts and circumstances including earlier proceedings between the
parties. As this judgment is under appeal, we do not propose to refer to the
various findings and observations made in this judgment at any length. Some of
the observations may, however, be noted. The Bench observed:-

   "A number of our brother Judges including one of us (Madon, J.) who have had
an occasion earlier to deal with the matter, have consistently considered the
mother as a mature and responsible woman who holds a steady job for the last 21
years, fetching her at present a salary of

72

     Rs. 2,500 per month. She is a mature woman who is genuinely and deeply
concerned with the welfare of her child. All these judges have also remarked
that the husband is an unstable person. He is unable to hold any job for any
length of time. He also suffers from a deepseated inferiority complex vis-a-vis
his ex-wife and for good reasons. From the respondent's conduct throughout this
litigation it is also apparent that he has scant regard for the welfare of his
daughter. He has, in order to score a point against his ex-wife, not hesitated
to drag his daughter from court to court resulting in his daughter's near
nervous breakdown." The Division Bench has also observed:-

   As repeatedly observed by a number of our brother judges including one of us
(Madon, J.) in the course of these proceedings, the girl has appeared happy and
normal when she is with the mother. She appears tense and nervous when she is
with her father. We have no doubt that the child is being pressurised and
terrorised into telling lies by the father. The father's conduct leaves much to
be desired." The Division Bench further observed :-

   The respondent and his brothers and sisters and mother do not have any
interest in the welfare of the children. This is borne out by the fact that they
admittedly talk constantly in the presence of the children regarding the present
case so much so that the children have picked up semi-legal words and
phraseology as noticed by the Court in various orders." Against this judgment
and order of the Division Bench the respondent (father) filed in this Court an
appeal under S. 19(1)(b) of the Contempt of Courts Act and in the said appeal
made an application for interim stay. On 15.8.81 on the said application for
interim order, this Court passed an order staying the operation of the Order of
the Division Bench in so far as the same related to the imposition of punishment
of imprisonment and fine on the father but directed that the rest of the order
of the High Court would stand. This Court further observed that the matter was
of an 73

urgent nature and the appeal which was pending before the High Court should be
disposed of as expeditiously as possible. It appears that in pursuance of the
order passed by the Division Bench of the Bombay High Court which was not in any
way affected by the order passed by this Court on 5.8.1981, the appellant had
got the minor daughter Gospi admitted into Kimmins Boarding School at Panchgani.
The appeal preferred by the appellant to the Division Bench of the Bombay High
Court against the judgment and order passed by Mehta, J. on 19.2.1981 allowing
the custody of the minor daughter to the father came up for hearing before a
Division Bench of the High Court consisting of Jahagairdar and Ashok Modi, JJ.
in October, 1981. It appears that in the course of the hearing of the appeal,
the learned Judges had expressed their desire to meet the minor Gospi and
directed that the minor Gospi should be brought to Bombay to enable them to see
her. Accordingly, Gospi was brought to Bombay and was interviewed by the learned
Judges at the residence of Modi, J. on 9th October, 1981. We may note that the
learned Judges have recorded their impression of the interview with Gospi in a
confidential note and had kept the same in a sealed cover for the benefit of
this Court in the event of any such occasion arising. On the 16th of October,
1981, the Division Bench dismissed the said appeal of the appellant with the
following order:- "For reasons to be recorded in the judgment to be delivered
later, we dismiss this appeal challenging the order dated 19th February, 1981
passed by Mehta, J. This in effect means that the said order awarding the
custody of the minor daughter Gospi to the Respondent- father is confirmed.
However, in view of the fact that the minor daughter is at this moment studying
in a residential school at Panchgani, we direct that she will not be brought to
Bombay till at least 3rd November, 1981. The respondent father is hereby allowed
to spend what is called the exit week-end beginning from 23rd October, 1981 with
daughter at Panchgani. After the child is brought to Bombay, the directions
contained in the order of Mehta, J. regarding the minor daughter-spending her
week-ends and vacations with the mother will come into force. However, it must
be made clear that if the school in which the minor daughter is admitted is
working on Saturdays, the mother will take the child with her after the school
hours are over." 74

The Division Bench delivered its judgment on 3rd November, 1981.

     Against this judgment and order of the Division Bench the mother has
preferred this appeal in this Court with special leave granted by this Court. In
the present appeal this Court passed an interim order on the 12th November, 1981
to the following effect:-

   "Without expressing any opinion on the merits of the question regarding the
custody of the child Gospi, who is the daughter of the appellant and respondent,
we direct as a matter of interim arrangement that she shall be allowed to
continue her education in the Panchgani School where she is studying at present
until the end of the academic year 1981-82. The parents will be at liberty to
meet the daughter alternatively, in accordance with the rules and regulations of
the school. While the girl is in school at Panchgani she will be at liberty to
write letters to both the parents.

   We are informed that the school will have vacation from November 18, 1981
till about January 18, 1982 and that the girl wants to come to Bombay during the
vacation, we direct that during the forthcoming vacation, she will live with the
father for the first half of the vacation and with the mother during the second
half of the vacation. The father will bring the child from Panchgani to Bombay
on the commencement of the vacation and the mother will take the child back to
the school when the school reopens after the vacation. At the end of the first
half of the vacation, the father will deliver the child to the custody of the
mother.

   The appeal shall come up for hearing in the second week of March, 1982.
Liberty to the parties to apply to this Court in regard to the custody of the
child during the pendency of the appeal, if the appeal for any reason is not
disposed of before April 15, 1982. The appeal (CA 1796/1981) the contempt matter
will be tagged with this appeal.

   We direct that the school authorities will submit to this Court a report in
the first week of March 1982 on the progress and performance of the child, and
on the question whether she was happy to be away at Panchgani."

75

     The appeal came up for hearing before us and on the conclusion of the
hearing we reserved judgment for our consideration of the matter. However,
taking into consideration the fact that the next term in the Panchgani School
will be commencing shortly and there will also be a short recess of the School
we passed the following further interim order on 27.4.1982 pending consideration
of the matter and delivery of the judgment by us:- "We direct that until further
orders of this Court the child Gospi, the daughter of the appellant and the
respondent, shall be allowed to continue her education in the Kimmins High
School at Panchgani. The parents will be at liberty to meet the daughter
alternately in accordance with the rules and regulations of the School, the
first opportunity of so meeting the daughter being afforded to the father. While
the girl is in the school at Panchgani, she will be at liberty to write letters
to both parents.

   We are informed that the school is in vacation from April 21, 1982 to May 12,
1982 and that on the commencement of the vacation the child Gospi was brought
home and is continuing there. We direct that she will live with the father for
the first half of the vacation, and thereafter will live with the mother during
the second half of the vacation. The child will be handed over by the father to
the mother in the presence of the Vacation Judge of the Bombay High Court on May
17, 1982 at an hour convenient to the Hon'ble Judge and we request the High
Court to inform this Court of the fact of such handing over. We direct further
that on the expiry of the vacations the mother will take the child back to the
School at Panchgani and entrust her to the custody of the Principal of the
School.

   The Court trusts that each parent will promote a sense of respect and
affection in the child's mind for the other parent and will take active interest
in persuading the child to settle down in the school at Panchgani, and so
promote an atmosphere conductive to the proper development of her personality,
her mental and physical health and the enjoyment of emotional security and well-
being."

Turning to the merits of the appeal, we must observe at the outset that this
case which is concerned with the welfare of a bright, sensitive

76

and innocent girl of about 11 years of age now, has in the peculiar facts and
circumstances of the case caused us a great deal of anxiety and pain and we have
given very careful consideration to the matter.

     Elaborate arguments have been advanced from the bar on behalf of the
respective parties.

     Mr. Desai, learned counsel for the appellant, has made the following
submissions:-

     1. In deciding the question of custody of the minor, the Court should be
guided only by the consideration of the welfare of the minor. Mr. Desai in this
connection has referred to S. 49 of the Parsi Marriage and Divorce Act, 1937, S.
41 and 42 of the Indian Divorce Act, 1969, S. 26 of the Hindu Marriage Act, 1957
and S. 38 of the Special Marriage Act, 1956 containing similar provisions and he
has strongly relied on the decision of this Court in Rosi Jacob v. Jacob A.
Chakrammakkal.(1)

     2. In the facts and circumstances of this case, the father cannot be
considered to be a fit person to have the custody of the child and the custody
of the child should be entrusted to the mother. In support of this submission
that the father is not the fit person to be given the custody of the minor
child, Mr. Desai has referred to the various proceedings between the parties,
the orders passed thereon and the observations made by learned Judges of the
Bombay High Court from time to time. Mr. Desai has argued that the father in his
self interest to have the minor child on his side and under his control, has
been trying to poison the mind of the daughter against the mother for whom the
daughter has a very great affection with the object of alienating the daughter
from the mother without any regard to the daughter's sentiments and without
appreciating the very great damage that he is doing to the daughter and this act
of the father has caused a tremendous amount of psychological strain, resulting
in a near nervous breakdown of the daughter. Mr. Desai has argued that the minor
being a daughter and now of the age of 11 years needs the company and guidance
of her mother. It is the argument of Mr. Desai that the mother has no particular
self-interest in obtaining the custody of the child and her only concern is the
welfare of her daughter, and she has spent and is

77

prepared to spend whatever amount is necessary for the welfare of the daughter
and she is also in a position to do so. Mr. Desai has commented that the main
ground on which the learned single Judge of the High Court and also the learned
Judges of the division Bench had not given the custody of the minor to the
mother is that the mother is a working girl and she does not have time to devote
to the daughter and it is his comment that this is really no ground. He further
comments that the father in most cases has to work for a living and in the
present case the father earns his living by plying a taxi at the present. He
argues that in modern times, particularly in view of the present economic
condition, in very many cases, both the husband and the wife have to work for a
proper living and the mere fact that the father or the mother has got to attend
to work, cannot disqualify the father or the mother. Mr. Desai has submitted
that apart from the fact that the mother is a working girl, there is nothing
against the mother which would disentitle her to the custody of her daughter and
in this connection Mr. Desai has referred to the judgments of the learned single
Judge and also the division Bench of the Bombay High Court. Mr. Desai has
further pointed out that the learned single Judge gave the custody of the
daughter to the father though the daughter had clearly expressed her desire to
live with her mother.

     3. The best interest of the minor in the peculiar facts and circumstances
of this case will be served only if the minor is removed from the unhealthy
atmosphere of home life and is placed in a Boarding House where she will have
healthy normal growth in the company of other children of her age under the care
and supervision of competent teachers, unimpeded by the conspiratorial attitude
of the father to destroy her feelings for the mother. In support of this
submission, Mr. Desai has referred to the various orders passed in which the
learned Judges of the Bombay High Court have recorded their impressions after
interviewing the girl; and Mr. Desai has placed particular reliance on the
report of the Social Welfare Expert, appointed by the Bombay High Court.

     Mr. Desai has further submitted that the minor who has been admitted to
Panchgani Boarding School and has been there for some time, is gradually fitting
in well and she has started feeling happy in the institution. In this connection
Mr. Desai has referred to a number of letters addressed by the minor to her
mother and also to the report of the Principal of the institution.

78

     Mr. Bhandare learned counsel for the respondent (the father of the minor)
has raised the following contentions:

     1. In deciding the question of custody of a minor, the Court will no doubt
be guided by the consideration of the minor's welfare but in considering the
question of the welfare of the minor, the Court should see the minor to
ascertain the wishes of the minor before deciding the question of the welfare of
the minor and the custody of the minor. It has been his argument that it is
indeed the duty and obligation of the Court to see the minor to ascertain the
wishes of the minor before coming to any decision on the question of custody of
the minor. In support of this argument, Mr. Bhandare has referred to S. 49 of
the Parsi Marriage and Divorce Act, 1937, Ss. 7 to 17 of the Guardians and Wards
Act, 1890 and also S. 26 of the Hindu Marriage Act, 1955. Mr. Bhandare has
strongly urged upon us to send for the minor and to talk to her either in Court
or in chambers in the presence of the parents or alone in their absence at the
discretion of the Court before deciding the question of custody of the minor.

     2. The minor is a bright and sensitive girl and is deeply attached to the
members of the family and to her brother in particular. Home influence has
considerable importance to the minor in properly shaping her life and future.
Removal of the minor from home and placing her in any Boarding School, however,
good and eminent the institution may be, will not enure to the benefit of the
minor, as she will not fit in and the minor will not feel happy in the boarding
school. The absence of the company of the father, the brother and the other near
relations will deeply affect the mind of the minor and cause a phsychological
depression in her mind and this will impede her normal healthy growth. Mr.
Bhandare has in this connection referred to a letter sent by the minor to her
aunt (father's sister).

     3. The order of custody of the minor daughter in favour of the father
passed by the learned single Judge of the Bombay High Court and affirmed by the
Division Bench of the Bombay High Court should not be interfered with by this
Court in this appeal. The mother has hardly any time to look after the welfare
of the daughter as she has to remain constantly busy with her work. Mr. Bhandare
has also criticised the conduct of the mother and he has commented that the
mother had walked out of the house without caring for the children and had no
time to think of them 79

for a number of months and during this period both the son and the daughter had
lived happily with the father and the other relations. According to Mr.
Bhandare, the only object of the mother who is not in a position to look after
the interests or the welfare of the daughter herself is to deprive the father of
the company of his daughter by putting her in a Boarding House.

     The principles of law in relation to the custody of a minor appear to be
well-established. It is well-settled that any matter concerning a minor, has to
be considered and decided only from the point of view of the welfare and
interest of the minor. In dealing with a matter concerning a minor, the Court
has a special responsibility and it is the duty of the Court to consider the
welfare of the minor and to protect the minor's interest. In considering the
question of custody of a minor, the Court has to be guided by the only
consideration of the welfare of the minor. In Halsbury's Laws of England, 3rd
Edn., Vol. 21, the Law is succintly stated in para 428 at p. 193-194 in the
following terms:

   "428. Infant's welfare paramount. In any proceedings before any court,
concerning the custody or upbringing of an infant or the administration of any
property belonging to or held on trust for an infant or the application, of the
income thereof, the Court must regard the welfare of the infant as the first and
paramount consideration and must not take into consideration, whether from any
other point of view, the claim of the father, or any right at common law
possessed by the father in respect of such custody, upbringing administration or
application is superior to that of the mother, or the claim of the mother is
superior to that of the father. This provision applies whether both parents are
living or either or both is or are dead.

   Even where the infant is a foreign national, the court, while giving weight
to the views of the foreign court, is bound to treat the welfare of the infant
as being of the first and paramount consideration whatever orders may have been
made by the Courts of any other country."

   In the case of Rosi Jacob v. Jacob A. Chakramakkal (supra), this Court has
observed at pp. 934-935: "Where, however, family dissolution due to some
unavoidable circumstances becomes necessary the Court has

80

     to come to a judicial decision on the question of the welfare of the
children on a full consideration of all the relevant circumstances. Merely
because the father loves his children and is not shown to be otherwise
undesirable cannot necessarily lead to the conclusion that the welfare of the
children would be better prompted by granting their custody to him as against
the wife who may also be equally affectionate towards her children and otherwise
equally free from blemish, and who in addition because of her profession and
financial resources, may be in a position to guarantee better health, education
and maintenance for them. The children are not mere chattels; nor are they mere
playthings for their parents. Absolute right of parents over the destinies and
the lives of their children has, in the modern changed social conditions,
yielded to the considerations of their welfare as human beings so that they may
grow up in a normal balanced manner to be useful members of the society and the
guardian court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the requirements of welfare
of the minor children and the rights of their respective parents, over them. The
approach of the learned single Judge, in our view, was correct and we agree with
him. The Letters Patent Bench on appeal seems to us to have erred in reversing
him on grounds, which we are unable to appreciate. At the bar reference was made
to a number of decided cases on the question of the right of father to be
appointed or declared as guardian and to be granted custody of his minor
children under s. 25 read with s. 19 of the Guardians and Wards Act. Those
decisions were mostly decided on their own peculiar facts. We have, therefore,
not considered it necessary to deal with them. To the extent, however, they go
against the view we have taken of s. 25 of the Guardians and Wards Act, they
must be held to be wrongly decided.

   The respondent's contention that the Court under the Divorce Act had granted
custody of the two younger children to the wife on the ground of their being of
tender age, no longer holds good and that, therefore, their custody

81

     must be handed over to him appears to us to be misconceived. The age of the
daughter at present is such that she must need the constant company of a grown-
up female in the house genuinely interested in her welfare. Her mother is in the
circumstances the best company for her. The daughter would need her mother's
advice and guidance on several matters of importance."

     These observations were no doubt made by this Court, while dealing with a
case of rival claims between the father and the mother over the custody of the
minor children mainly under the Guardians and Wards Act, 1890. The aforesaid
observations in our opinion, are applicable to the instant case.

     We shall now proceed to examine the contention of Mr. Bhandare that in
deciding the question of custody of any minor, it becomes the duty and
obligation of the Court to interview the minor for ascertaining the minor's
wishes and to implement the same. S. 49 of the Parsi Marriage and Divorce Act,
1936 provides "In any suit under this Act, the Court may from time to time pass
such interim orders and make such provisions in the final decree as it may deem
just and proper with respect to the custody, maintenance and education of the
children under the age of 16 years, the marriage of whose parents is the subject
of such suit, and may, after the final decree upon application by petition for
this purpose, make, revoke, suspend or vary 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 final decree or by interim orders in
case the suit for obtaining such decree were still pending". This section
confers power upon the Court to pass such orders as the Court deems just and
proper with respect to the custody, maintenance and education of the children
under the age of 16 years in a case falling under the Parsi Marriage and Divorce
Act, 1936. This section does not speak anything about a Judge interviewing a
minor before passing any order in the matter of custody, maintenance and
education of the minor and this section or any other section in this Act, does
not cast upon the Court any duty or obligation to see the minor and to ascertain
the wishes of the minor.

     The material portion of S. 7 of the Guardians and Wards Act, 1890 to which
reference has been made by Mr. Bhandare reads as follows:

82

   "7(1). Where the Court is satisfied that it is for the welfare of a minor
that an order should be made: (a) appointing a guardian of his person or
property, or both, or

   (b) declaring a person to be such a guardian; the Court may make an order
accordingly."

This section empowers the Court to appoint a guardian of the person or property
of the minor where the court is satisfied that is for the welfare of the minor
to do so. S. 17 of the Guardians and Wards Act, 1890 may in this connection also
be noted :

   "17. (1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions ofthis 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 Court 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.

   x x x x x x x x x

   (5) The Court shall not appoint or declare any person to be a guardian
against his will." This section provides for matters to be considered by the
Court in appointing the guardian. Sub-section (1) provides that subject to the
provisions of this section, the Court should consider the law to which the minor
is subject and be guided by what appears in the circumstances to be for the
welfare of the minor. Sub-section (2) stipulates that in considering what will
be for the welfare of 83

the minor, the Court shall have regard for 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. Sub-
section (3) empowers the Court in the event the minor is old enough to form an
intelligent preference, to consider the preference. Sub-section (5) prevents the
Court from appointing or declaring any guardian against the will of the person.
Sub-section (3) of this section undoubtedly enables the Court to consider the
preference of any minor if the minor is old enough to form an intelligent
preference.

     In the present case we are not concerned with the question of appointment
of a guardian either of the property or of the person of the minor, under the
Guardians and Wards Act, 1890.

     We may, however, point out that there cannot be any manner of doubt as to
the Court's power of interviewing any minor for ascertaining the wishes of the
minor, if the Court considers it so necessary for its own satisfaction in
dealing with the question relating to the custody of the minor.

     In the facts and circumstances of this case we are however, not inclined to
interview the minor daughter, as we are satisfied in the present case that the
minor is not fit to form an intelligent preference which may be taken into
consideration in deciding her welfare. We have earlier set out in extenso the
various orders passed by the various learned Judges of the Bombay High Court
after interviewing the minor and the learned Judges have recorded their
impressions in their judgments and orders. The impressions as recorded by the
learned Judges of the Bombay High Court, go to indicate that the minor has
expressed different kinds of wishes at different times under different
conditions. It also appears from the report of the Social Welfare Expert that
these interviews cast a gloom on the sensitive mind of the tender girl and
caused a lot of strain and depression on her. Torn between her love for both her
parents and the acrimonious dispute between them resulting in the minor being
dragged from court to court, we can well appreciate that the sensitive mind of
the minor girl is bound to be sadly affected. Though the girl is quite bright
and intelligent as recorded by the learned Judges of the Bombay High Court in
their orders after their interviews with the girl who is of a tender age

84

and is placed in a very delicate and embarrasing situation because of the
unfortunate relationship and litigation between her parents for both of whom she
has great deal of affection, she is not in a position to express any intelligent
preference which will be conducive to her interest and welfare. Mature thinking
is indeed necessary in such a situation to decide as to what will enure to her
benefit and welfare. Any child who is placed in such an unfortunate position,
can hardly have the capacity to express an intelligent preference which may
require the Court's consideration to decide what should be the course to be
adopted for the child's welfare. The letters addressed by the daughter to her
mother from Panchgani and also a letter addressed by her to her aunt (father's
sister) also go to show that the minor cannot understand her own mind properly
and cannot form any firm desire. We feel that sending for the minor and
interviewing her in the present case will not only not serve any useful purpose
but will have the effect of creating further depression and demoralisation in
her mind.

     We are, therefore, unable to accept the contention of Mr. Bhandare that
there is any duty or obligation on the part of the Court to interview the minor
for ascertaining the wishes of the minor before deciding the question of her
custody and that we should send for the minor in the present case and interview
her to ascertain her wishes before we proceed to decide the question of her
custody. Home influence plays a very important role in shaping the life of every
child. Influence of a happy home where the children are brought up under the
affectionate care and guidance of their parents and other relations, all
concerned with the welfare of the children, no doubt, enables the children to
lead a normal healthy life and materially contribute to their welfare. In a
happy home the children are free from any kind of unhappy tension and
psychological strain and they grow up in a healthy environment where their
interests and welfare are properly looked after by their parents. In such a
case, the court is naturally not called upon to interfere and to consider the
welfare of the children and the welfare of the children is well taken care of by
their parents whose primary concern is to see to their interest and welfare. It
may, however, be mentioned that even in cases of happy homes where the children
have a very congenial atmosphere for their healthy growth and are very well
looked after by their parents, the parents, in many cases do send their children
to Boarding Schools. The parents do so, as the

85

parents feel that the interest and welfare of children will be better served, if
they are sent to a good Boarding School where the children, on their own and in
the company of their fellow students, will have a greater and better opportunity
of developing their personality and shaping themselves properly under the
supervision of competent teachers to enable them to fashion their lives properly
and face bravely and squarely the hard realities of the world. A good Boarding
School has very many advantages and is in a position to enforce proper
discipline which is obviously necessary for healthy growth of every child. It is
well- known that mainly because of such desire on the part of very many of the
parents to send their children to a good Boarding School, seats are hardly
available in a good Boarding Institution these days and seats have to be booked
well in advance. Loving parents who send their children to Boarding Schools for
education, have generally to do so against the wishes of the children. Children
will naturally not be inclined to stay away from their affectionate parents and
to leave their happy homes where they enjoy not only the affection and care of
their parents but also all the homely comforts and they do not like to be
subjected to the rigours of strict discipline enforced in a Boarding
Institution. Children sent to a Boarding Institution from happy homes, also find
it difficult to adjust themselves to the environment of a Boarding School and
may not feel very happy. Fond parents bearing only in mind the interest and
welfare of their children still send their loving children to Boarding Schools
against the wishes of the children, sacrificing themselves the company of their
children at home, and persuade their children to adjust themselves in the
Boarding School and they go on encouraging their children to enable them to
settle down in that institution. Parents do so at considerable sacrifice to
themselves, only in the hope and expectation that the interest and welfare of
the children will be best served. It is common experience that children who are
sent from happy homes to Boarding Institutions and when do not feel easy and
comfortable in the Boarding Institution when they join to such institution, soon
adjust themselves to the new environment and come to like the Boarding
Institution where in the company of fellow students they lead a healthy and
happy life under the guidance and care of competent teachers to the joy of their
parents.

     It is also no doubt true that children who stay at home with their parents
and do not go to Boarding Schools may also be very well disciplined in life and
may have a very healthy, happy and normal growth while staying at home. Indeed,
the majority of

86

children in our country are brought up in their homes, as very many of the
parents are not in a position to bear the expenses of a Boarding School for
their children. The children grow well and happily in homes under the
affectionate care and guidance of their parents, so long as they continue to
enjoy the blessings of a happy home. A broken home, however, has a different
tale to tell for the children. When parents fall out and start fighting, the
peace and happiness of home life are gone and the children become the worst
sufferers. It is indeed sad and unfortunate that parents do not realise the
incalculable harm they may do to their children by fighting amongst themselves.
The husband and the wife are the persons primarily responsible for bringing the
children into this world and the innocent children become the worst victims of
any dispute between their father and the mother. Human-beings with frailties
common to human nature, may not be in a position to rise above passion,
prejudice and weakness. Mind is, indeed, a peculiar place and the working of
human mind is often inscrutable. For very many reasons it may unfortunately be
not possible for the husband and wife to live together and they may be forced to
part company. Any husband and wife who have irreconciliable differences, forcing
them to part company, should, however, have sense enough to understand and
appreciate that they have their duties to their children. In the interest of the
children whom they have brought into existence and who are innocent, every
husband and wife should try to compose their differences. Even when any husband
and wife are not in a position to reconcile their differences and are compelled
to part, they should part in a way as will cause least possible mischief to the
children.

     Hard facts of life, however, go to show that when near relations fall out,
the passions and sentiments are so worked up in them that they lose the right
perspective and are not in a position to consider and judge what will ultimately
be for their good. In the instant case, the disputes between the parties who had
been married for years and are responsible for the birth of two children, have
now become so bitter that a number of proceedings including contempt proceedings
by either of them have been initiated and the unfortunate children have been
paraded from Court to Court. The learned Judges of the High Court have done
their best to compose the differences and have from time to time passed
appropriate orders which, if implemented in the true spirit would have enured to
the benefit of all concerned. It, however, appears that mainly because of the
attitude of the father, the various orders directinng the children to 87

stay with their father for five working days in the week and with the mother
during the week-ends and also apportionting the period of their stay with the
parents during the vacations passed by the learned Judges of the Bombay High
Court from time to time in the best interests of all parties concerned including
the children, have failed to achieve any useful purpose and have only resulted
in further litigation. The facts and circumstances of the case establish that
the father out of spite against the mother is not willing to allow the children
to stay with their mother. Obsessed with the idea of having exclusive control of
the children, he has been trying to poison the minds of the children against the
mother with the only object of completely alienating them from their mother, and
in his spiteful obsession, the father fails to appreciate the very great harm
done to the children. It appears that the father has succeeded in his attempt in
alienating the son who, as the records show, was once deeply attached to the
mother and had great affection for her; and, the son has now become hostile to
the mother. The Respondent husband in view of his bitter feelings against the
appellant, may feel elated and satisfied in having succeeded in making the son
hostile to the mother. He, however, does not appreciate the very great stress
and strain the son must have undergone in the process of losing his love for the
mother and he also does not understand how unfortunate it is for any son to be
deprived of the affection of his mother and to lose his own love for the mother.
The mother still appears to have a very great affection for the son. The
situation is unfortunate but in this appeal we are not concerned with the son
who is now well over 16 years of age. We only hope that all concerned will try
to restore good relationship amongst themselves, as we feel that though the
husband and wife have now parted for good, restoration of friendly relationship
amongst all of them will enable them to live in peace and happiness and allowing
the bitterness to continue will only add to their miseries and troubles.

     The effect on the little girl of the embittered relationship between her
parents and the attempt of the father to poison the mind of the daughter against
her mother and to alienate her from the mother has been simply disastrous. The
intelligent and sensible girl, distressed at the acrimony between her parents,
who wanted to spend her time with each of her parents as she is deeply attached
to both, as recorded by Lentin, J. in his order dated 28.6.1979, was on the
verge of near nervous break-down as noted by the Division

88

Bench in its judgment dated 31st July, 1981. The various orders passed in
between which we have set out at length also, indicate what great mental strain
and agony the little girl had suffered because of the acrimonious dispute
between her parents. During this period of two years, the girl had been under
home influence, as she had been staying with her quarrelling parents in terms of
the various orders of the High Court. The little girl also had been compelled to
make her appearances in Court from time to time. The facts and circumstances
clearly establish that the effect of home influence on the minor in the present
case has been to reduce a bright, happy and sensible child to a state of
complete misery; and, the extreme psychological strain on the sensible mind of
the little girl has caused almost a near nervous breakdown. When the atmosphere
in a house, vitiated and rendered surcharged with tension as a result of bitter
squabbles between husband and wife causes misery and unhappiness to a child, who
has to live in constant psychological strain in such a broken home in view of
the bitter relationship between her parents for each of whom she has great
affection, the healthy and normal growth of the child is bound to be seriously
affected. In the interest and for the welfare of the child in such a case, the
child is necessarily to be removed from such unhealthy environment of a broken
home surcharged with tension. In such a case, the proper and best way of serving
the interest and welfare of the child will be to remove the child from such
atmosphere of acrimony and tension and to put the child in a place where the
embittered relationship between her parents does not easily and constantly
effect her tender mind. In the facts and circumstances of the present case the
best way to serve the welfare and interest of the child will be to remove the
child from the unhealthy atmosphere at home which has caused a very great strain
on her nerves and has certainly affected her healthy growth, to a place where
she can live a normal healthy life and will have a good opportunity of proper
education and healthy growth. We note with satisfaction that the view that we
have taken is fully supported by the report of the Social Welfare Expert. The
report of the Social Welfare Expert, though not binding on the Court is entitled
to weighty consideration. In the instant case, the Expert has made a very
careful study of the entire matter and has given a well reasoned report.
Pursuant to the order passed by the Division Bench of the Bombay High Court the
mother got the child admitted into 89

Kimmins Boarding School at Panchgani. By an interim order passed by this Court
in the stay application in this appeal, the child was directed to continue her
stay in the said Boarding institution. By the interim order passed by us on the
conclusion of the hearing we directed that the child should continue her study
in the Boarding School. On a consideration of all the facts and circumstances of
this case and bearing in mind the paramount consideration of the welfare of the
child, we are of the opinion that the child's interest and welfare will be best
served by removing her from the influence of home life and by directing that she
should continue to remain in the Boarding School. It is not in dispute that
Kimmins Boarding School at Panchgani to which the child has been admitted is a
good institution. The question of custody of the child must necessarily be
considered from the only view point of the welfare of the child. In view of our
finding that in the instant case the best interest of the child shall be served
by keeping her in a Boarding School away from the unhealthy atmosphere of strain
and tension which she had been undergoing at home, the question of custody has
to be judged in this background. In that view of the matter it does not really
become necessary for us to go into the question of the merits of the respective
competence of either of the parents. The person to whom the custody of the child
has to be entrusted will necessarily be answerable to the school for payment of
all charges and expenses of the child and also in relation to any matter
concerning the child in her school life. It is clear that the father is not
inclined to allow the child to remain in a Boarding institution. If the custody
be left to him, the father in view of the disinclination to allow the child to
remain in the Boarding institution, may be in a position to create difficulties
for the child for her remaining in the institution by nonpayment of fees or
otherwise. As we have earlier noticed, the father is obsessed with the idea of
obtaining exclusive control of the daughter and keeping the daughter with him in
his house. It is not in dispute and it cannot be disputed that the mother has a
great deal of affection for her daughter and the daughter is also very fond of
the mother. The mother has the welfare of the daughter in her heart and to serve
the best interest of the daughter the mother is prepared to make any necessary
sacrifice. For the welfare of the daughter the mother at considerable expense
had put her in Kimmins Boarding School, Panchgani which is recognised to be a
good institution. She has

90

been paying for all the expenses of the daughter at the school. She has a steady
income out of which she is in a position to meet all the expenses of her
daughter at the school. The mother also does not suffer from any obsession
regarding possession of the girl and she wants her daughter to lead a healthy
normal life essential for her proper growth and development. The mother is very
anxious that the child should continue to remain in the Boarding School. The
girl now aged about 11 years, is reaching an age when she will need the guidance
of her mother. We are, therefore, of the opinion that the custody of the girl
should be given to the mother. The argument of Mr. Desai that the Bombay High
Court went wrong in refusing the custody of the daughter to the mother mainly on
the ground that the mother is a working girl, is not without force. It also
appears that the High Court failed to properly appreciate that home influence in
the present case had been doing very great damage to the healthy growth of the
child and had brought about a near nervous breakdown of the girl. The argument
of Mr. Bhandare that the girl needs in any event the company of her brother to
whom she is deeply attached, has not impressed us. The girl had been staying
with her father at home and had been enjoying the company of her brother. It
does not, however, appear that the home influence including influence of the
brother, has done her any good. The influence at home, as we have earlier
noticed, has more or less made her a nervous wreck. The further fact also
remains that the brother is now grown up and he may not be there at the house to
give her company. At the time of hearing of the appeal we were given to
understand that the brother was away at Ceylon as a sea cadet and was likely to
return soon. We may also add that by the directions already given by this Court,
all necessary and proper opportunities have been given to the brother to meet
the minor.

     In the result the appeal succceds. We set aside the judgment and order
passed by the Bombay High Court allowing the custody of the child to the father.
We pass the following order:-

     The appeal is allowed The custody of the child is given to the mother, the
appellant before us. The mother will have the custody of her minor daughter
Gospi reaches the age of 16 years.

91

     We also give the following further directions :-

     1. The child Gospi, the daughter of the appellant and the respondent shall
be allowed to continue her education in the Kimmins High Court School at
Panchgani.

     2. The parents will be at liberty to meet the daughter alternatively in
accordance with rules and regulations of the school, the first opportunity of so
meeting the daughter being afforded to the father.

     3. While the girl is in the school at Panchgani she will be at liberty to
write letters to both her parents and also to her brother and other relations
and friends.

     4. When the school closes for any vacation the girl will live with the
father for the first half of the vacation and thereafter will live with the
mother during the secoud half of the vacation. The father will arrange to bring
the girl from his school to his place.

     5. Under no circumstances the father will be entitled to keep the girl
Gospi with him beyond the period of the first half of the vacation without
obtaining any prior order from this Court on notice to the appellant. The father
will positively and punctually hand over the child to the mother on the expiry
of the period of the first half of the vacation at the mother's place of
residence.

     6. On the expiry of the vacation the mother is directed to take the child
back to the school at Panchgani and entrust her to the custody of the Principal
of the School.

     These directions will remain in force, unless otherwise ordered by this
Court, as long as the minor Gospi does not reach the age of 16 years.

     It may be placed on record that after the judgment had been prepared and
made ready, I received a letter purported to have been written by the minor
Gospi. It is indeed a curious letter which has been written in an inland card.
It appears from the inland

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letter card that the inland letter card contains the photostat copy of a letter
dated 15.5.1982 by her to the Chief Justic of India and the inland letter card
also bears a photostat copy of the Supreme Court address of the Chief Justice of
India. In the very same letter a few lines have been addressed to me in the
space left after the photostat copy of the letter dated 15.5.1982 to the Chief
Justice of India has been completed. The letter addressed to me in this very
inland air letter card is dated 13.6.1982. This inland letter card which
contains the photostat copy of the letter dated 15.5.1982 and the letter dated
13.6.1982 has been put in an envelope sent to me under registered post with
acknowledgement due. An identical letter written by the girl in the very same
manner in another inland air letter card contained the photostat copy of her
letter dated 15.5.1982 to the Chief Justice of India has also been sent to my
learned brother Pathak, J. The letter to my learned brother is also dated
13.6.1982 and is word for word the same as the letter to me. The inland letter
card in which the exactly similar letter has been addressed to my learned
brother was also put in an envelope and sent to my brother under registered
post. The registered envelopes of both these two letters addressed to us
indicate that the letters were sent from the address of her father.

     We do not propose to set out the contents of the letter as we feel that the
same will not serve any useful purpose and may only create unnecessary
embarrassment and avoidable unpleasantness for the parties. It has been our
earnest endeavour to try to create a situation of amity and goodwill as far as
possible under the circumstances amongst the parties in the larger interest of
the minor girl and to try to avoid to say or do anything which may create any
unpleasantness or bitterness amongst them. Suffice it to say that the main
purport of these letters is that Gospi does not want to continue her studies in
the boarding school and she wants that we should interview her and allow her to
stay with her father.

     We have no manner of doubt that these letters have been written by Gospi at
the instance of her farher. Even if we accept that Gospi wrote a letter to the
Chief Justice of India on 15.5.1982 it is inconceivable that a girl of Gospi's
age could ever think of keeping photostat copies of the letter and it would also
not be possible for a girl of her age to prepare photostat copies. It is obvious
that the letter dated 15.5.1982 addressed to the Chief Justice of India, if the
letter had been sent at all, must have been written by Gospi under the direction
of the father who must have prepared

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photostat copies. It is interesting to note that when the hearing of the matter
had been concluded and we reserved judgment after passing the interim order on
the conclusion of the hearing these two letters absolutely identical in every
word and detail should be addressed to us. It was indeed not possible for Gospi
to know which particular Bench of this Court was hearing these matters. The
registered envelopes in which the letters have been sent also indicate that the
letters have been sent from the address of the father. These letters have been
written in inland air letter cards containing the photostat copy of the letter
to the Chief Justice of India with the obvious object of showing that Gospi had
earlier written to the Chief Justice about this matter. We have no doubt that
these letters have been addressed to us after the conclusion of the hearing with
the object of lending support to the submissions made on behalf of the father in
course of the hearing and creating an impression in our mind that we should see
Gospi before we deliver our judgment and we should not place Gospi in the
boarding institution and should allow Gospi to stay with her father. We feel
that father has caused these letters to be addressed to us by his daughter,
while the daughter had been staying with him, particularly in view of the
interim order passed by us on the conclusion of the hearing pending judgment so
that we may reconsider our order, while delivering our judgment and disposing of
the matter finally. We cannot help observing that these letters go to show that
the view that we have taken is clearly right and we can place no reliance on any
kind of wish of Gospi who is not in a position to form any independent volition
of her own and she expresses different kind of wishes in different situations
under the influence and domination of others. As we have earlier discussed at
length in the judgment, it is not possible for the girl in the situation now
prevailing to express any preferential wish which may require consideration by
us to decide her welfare. These letters have the affect of strengthening the
impression in our minds that Gospi's real welfare will be best served by keeping
her in the boarding institution and cannot be served by allowing her to stay
with her father.

     Now that the matter is finally over, we ask the father once again not to
persist in his present attitude, as it will do a lot of harm to his daughter
whose sensitive mind, disturbed as it is, is likely to get destabilised. The
father who has his love and affection for the daughter should appreciate that
his daughter is indeed fortunate 94

in being in a position to receive her education from an institution of repute
and that the education of his daughter at the boarding institution will conduce
to her healthy and happy growth and to her welfare. The father should encourage
Gospi to settle down properly in the boarding institution and to make the best
of it. If we, however, find that the father is still persisting in his present
attitude and is seeking to upset the mind of the girl in properly settling down
at the institution, we may reluctantly have to take appropriate steps in the
interest and for the welfare of the minor girl for whom the Court has now a
special responsibility. We do hope that no such occasion will arise. We hope
that Gospi will realise that she is having her education in a good boarding
institution in an environment which is otherwise free from unhealthy atmosphere
of stress and strain from which she had been suffering for the last few years.
She should also appreciate that her upbringing and education in this reputed
institution in the company of children of her age and under the guidance of
competent teachers will be for her good and she should try to make the best
possible use of her study in the institution and devote herself to her studies.

     We direct that the two letters should be kept in the records of the
proceedings of this appeal. After we had received the letters from the girl, a
letter dated 5th July 82 addressed by the Principal of the School to the
Assitant Registrar of this Court has been placed before us. In this letter the
Principal has informed the Court that on the expiry of the holidays the mother
brought the girl back to the school and the girl was happy in school and in the
first monthly report for the months of May and June, the girl has done very well
in her studies and secured 65% marks with 7th position. We direct that this
letter of the Principal also to be kept in the records of the proceedings of
this appeal.

S.R. Appeal allowed.

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