1. This is a petition filed under the Guardians and Wards Act, 1890 by the petitioner for the custody of her minor son named Malcolm. The petitioner who was formerly a Zoroastrian by faith was married to one Kersi Soli Shroff according to the rites and tenets of the Zoroastrian religion. The said Kersi Shroff died in Bombay on the 18th April, 1979 under rather tragic circumstances. On 13th March, 1979, i.e. about a month prior to the death of the said Kersi the petitioner gave birth to a son, whose custody is the subject of the present controversy.
2. Respondents 1 and 2 are the father and mother respectively of the deceased Kersi. Respondent No. 3 is the maternal grand-mother of the petitioner and respondent No. 4 is the father of the petitioner. Shortly after the birth of the minor Malcolm, the petitioner and her deceased husband appear to have separated. On 21st March, 1979 the deceased Kersi left the flat at Andheri where he cohabited with the petitioner and went to reside with his parents respondents 1 and 2. On 18th Apr., 1979, Kersi took an over dose of sleeping tablets and died as a result thereof. Between 10th June, 1979 and 7th July, 1979 the petitioner resided with her maternal grandmother, respondent No. 3. It appears that the petitioner had been brought up by respondent No. 3 from her childhood. From 7th July, 1979 the petitioner began to reside at her flat at Andheri. At some stage the petitioner, it appears, became friendly with one Umesh Tahiliani whom she later married. It, however, is not clear on the pleadings as to when the acquaintance had begun, whether before or after the death of Kersi, her first husband. That fact, however, is no longer pertinent. What is pertinent is that on the 16th August, 1979 the petitioner embraced Hindu religion and was married to the said Umesh Tahiliani on the same day according to Hindu Vedic rites at the Arya Samaj, Bombay.
3. Soon after her second marriage, the petitioner went out of Bombay for about three or four weeks along with the - said Umesh Tahiliani. During this time, she requested respondent No. 3 to keep her minor son in her custody, which the respondent No. 3 agreed to do.
4. On the 22nd Sept., 1979 the petitioner along with the said Umesh Tahiliani went to the residence of respondent No. 3 in order to fetch the minor. According to the petitioner, respondent No. 3 did not allow her as also her newly-wedded husband to enter her residence and when asked for the custody of the minor she informed the petitioner that the minor was at the residence of respondents 1 and 2. The petitioner tried to contact respondent No. 2 on the telephone in order to enquire about the minor, whereupon respondent No. 2 disconnected the telephone without giving an answer. The petitioner has now filed this petition praying that she may be declared as the lawful guardian of the person and property of her minor son and to grant the custody of the minor to her. She has also prayed that the respondents be ordered and directed to forthwith deliver custody of the said Malcolm to the petitioner.
5. Shri Agarwal, the learned Advocate appearing on behalf of the petitioner has submitted that the respondents 1, 2 and 3 had wrongfully withheld custody of the minor from his mother who was the natural guardian. Shri Agarwal stated that the opposition of respondents 1, 2 and 3 for withholding custody of the minor to the mother was based on three grounds. Firstly, on the fact of the conversion of the petitioner from the religion of her birth. Secondly on the ground that she had abandoned the guardianship of the minor and thirdly on the ground that deceased Kersi had expressed a wish that his son be brought up in the Zoroastrian faith and further that he be brought up to be a priest by profession. Shri Agarwal submitted that proselytism of the petitioner could in no way affect the right of the mother to the custody of her minor son, a submission with which I am inclined to agree. Shri Agarwal further contended that at no stage was the minor abandoned by the mother, but that she had left the minor in the charge of respondent No. 3 who was her maternal grand-mother during the brief period that she went on honeymoon with her newly-wedded husband. Finally, Shri Agarwal submitted that the wishes of the deceased father to raise the minor in the faith of his fathers and to train him to be a priest by profession could not in any way annul or abridge the right of the mother to the guardianship of her minor child. Shri Agarwal has even questioned the factum of the deceased father having expressed any such wish, as asserted by respondents 1, 2 and 3.
6. Shri Agarwal cited a vintage decision in the case of Queen v. Shapurji Bezenji and Bezanji Edalji reported in 1843 Parsi Oriental Cases 91, wherein it was observed by the learned Judge:--
'Then as to the point of Hormazji having become a Christian, we cannot for one moment listen to the argument, that because a man has changed his religion, therefore his natural rights are held to be forfeited.'
7. Shri Agarwal also drew my attention to the decision of the Madras High Court in the case of Audiappa Pillai v. Nallendrani Pillai, reported in ILR 39 Mad 473 : AIR 1916 Mad 605. It will be sufficient to recite the head-note appearing in the volume:--
'Under Section 19 of the Guardians and Wards Act, the Court must be satisfied that the husband or father is unfit to be the guardian of his wife or child respectively before it can appoint another person as guardian. The fact of the father marrying a second time is no ground for depriving him of the guardianship of his minor children.'
8. Shri Agarwal also relied upon a decision of the Bombay High Court in the case of Saraswatibai Shripad Ved v. Shripad Vasanji Ved, reported in : AIR1941Bom103 , wherein Beaumont C. J. observed :--
'I think the law on questions of this sort is the same in this country as in England, though of course social habits may be different. The modern view of Judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother. If the natural mother is a suitable person, the Courts in England will as a general rule hand over the custody of a child of tender years to the mother. The mother's position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time the right of the mother to the custody of her young children is undoubtedly recognised in this country. However, the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world over and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.'
In the same decision, Wadia, J. in a concurrent judgment observed :--
'That natural right of the father has received statutory recognition in Section 19(b), Guardians and Wards Act, VIII of 1890. But Section 19 is in my opinion controlled by Section 17 of the same Act, according to which the paramount consideration is the welfare of the minor.'
9. Shri Agarwal submitted that the ground on which the respondents 1, 2 and 3 opposed the petitioner's application for custody were untenable and that I should grant the petitioner custody of the minor forthwith in view of the fact that she was the natural guardian of the minor.
10. Shri Khambhatta, the learned Advocate appearing on behalf of the respondents 1, 2 and 3 has not denied that the petitioner as the natural mother in normal course would be entitled to the custody of the minor. He, however, emphasised that under Section 17 of the Guardians and Wards Act, 1890 there were two factors which were required to be taken into consideration whilst appointing a guardian -- one was the religion of the minor and the other was the wish of a deceased parent. Shri Khambhatta submitted that the minor so far had been brought up in the Zoroastrian faith and that it was the wish of the deceased father that the child be not only brought up in the same faith but also that he should be trained to become a priest by profession. Shri Khambatta submitted that the petitioner having converted herself to Hinduism would not be able to bring up the child in the Zoroastrian faith. Shri Khambatta also pointed out certain other disabilities, which according to him would not enable the petitioner to bring up the child in a healthy and congenial atmosphere. Shri Khambhatta stated that ultimately the custody of the minor may be granted to the mother, but for some years the minor may be permitted to remain with respondents 1, 2 and 3 who has so far brought up the minor from his infancy.
11. Shri Khambhatta relied upon the decision in Helen Skinner v. Sophia Evelina Orde, reported in (1870) 14 M I A 309 wherein the Judicial Committee was pleased to observe :--
'From the very necessity of a case, a child in India under ordinary circumstances must be presumed to have his father's religion and his corresponding civil and social status; and it is, therefore, ordinarily and in the absence of controlling circumstances the duty of a guardian to train his infant in such religion.'
12. Shri Khambhatta also relied upon a decision of the Oudh High Court in the case of Nadir Mirza v. Munni Begam, reported in AIR 1930 Oud 471 wherein the Judicial Committee was pleased to observe:--
'In the present case the child was born a Shia Mahomedan and had been brought up by his father in that faith until the father's death. He has not lived with his mother for two years and it is a matter for serious consideration whether a mother, who has rejected the religion of her husband, should be able to come forward on the latter's death and take away the son, whom she had herself left with his father, from the religion and the surroundings in which he has been so far brought up.
xxxxx Generally speaking a Court of Justice is loath to take sides in a case between rival religions, and where a male child has been born and brought up in the faith of his father, I do not consider that he should be handed over to his mother who has left that faith, and has thereby stepped outside the family in which she was married, with certainty that the boy will be induced to leave the religion of his father, for the new religion of the mother. In my opinion therefore the child should be left with his grandfather and I accordingly allow this appeal.'
13. Shri Khambhatta pointed out that the facts in the case cited above were identical with the facts of the present case and that following the reasoning of the learned Judge, I should withhold the custody of the minor from the mother.
14. It is true that in the instant case the petitioner has converted herself from the Zoroastrian faith to Hinduism. That, however, to my mind does not disentitle the petitioner as the mother from having the custody of the minor. The authorities relied upon by Shri Khambhatta were pronounced decades ago and the observations applied to a bygone era. In the society in which we live religion is a matter of one's personal faith and conversion cannot be regarded as a disqualification for the custody of the minor so long as the guardian is capable of providing a congenial, comfortable and a happy home for the minor. It is in evidence that the petitioner's second husband Umesh Tahiliani is gainfully employed in the Income-tax Department. The petitioner herself is also gainfully employed. I am informed that the said Umesh Tahiliani has been allotted a flat in the Income-tax Officers' Quarters on Pedder Road. I am, therefore, satisfied that the petitioner will be able to provide a congenial and a happy home for the minor.
15. I would have had no hesitation in granting the petitioner's prayer for the custody of the minor forthwith but for the fact that there are certain factors which do not favour the instantaneous transfer of the minor from the custody of respondents 1, 2 and 3 to that of the petitioner. These factors are : firstly, that the petitioner has a second child who is at present a babe-in-arms and will, therefore, require the constant attention of the petitioner. Secondly, the petitioner is employed and there being no other member of the family, when both the petitioner and Umesh Tahiliani attend to their work, the minor be left on the tender mercy of servants. Shri Agarwal submitted that the petitioner was willing to give an undertaking to this Court that she will give up her employment in order that she may be able to devote her attention fully to her children. The fact, however, remains that today the petitioner is still in employment. I have not insisted on the petitioner giving the undertaking for the reason that in these difficult days of financial stringency with the price level shooting up daily, it would not be fair to call upon the petitioner to resign her post. The third factor, and which is the most important, keeping in mind the fact that the welfare of the minor is of paramount importance, is that I consider it unwise to tear the minor from the environment in which he has been brought up. I think it will be in the interest of the minor to permit him to continue in the atmosphere in which he has been brought up by respondents 1, 2 and 3 for at least a year, by which tune he will be of an age when he will begin to attend school. In these proceedings an Interim Order has been passed permitting the petitioner to have access to the minor every evening from 5.00 P. M. to 7.00 P. M. and from every Friday evening till Monday morning. I think this arrangement is eminently suitable and reasonable and the same ought to be continued for a period of one year during the time the minor will be in the custody of respondents 1, 2 and 3. Apart from this a further provision that after every three months the minor will be permitted to live with the petitioner for a period of fifteen days, will also facilitate in the eventual transfer of the minor from respondents 1, 2 and 3 to the petitioner. This arrangement is with a view that at the end of the year the custody of the minor will be transferred, to the petitioner. Thereafter respondents 1, 2 and 3 can be provided access in order that they may fulfil the wishes of the deceased father of the minor. The process of gradual transfer from one surrounding to another will spare the minor any traumatic experience which a sudden change of surroundings is likely to cause.
16. Accordingly I do order that the minor Malcolm will continue to remain in the custody of respondents 1, 2 and 3 for a period of about a year i.e. till 30th Apr, 1982. During this period, the petitioner will be permitted to have access to the minor every evening from 5.00 P. M. to 7.00 P. M. and further from every Friday evening till Monday morning. I further direct that at the end of every three months, the minor will be handed over to the petitioner who will keep him with her for a fortnight. On 1st May, 1982, respondents 1, 2 and 3 will hand over custody of the minor to the petitioner who by that time will have reached the age for joining a school. After the petitioner gains custody of the minor, she will grant access to respondents 1, 2 and 3 on every Saturday and Sunday so that respondents 1, 2 and 3 may endeavour to fulfil the wish of the deceased father.
17. Shri Agarwal has applied that the minor be allowed to accompany the petitioner and the said Umesh Tahiliani who are proceeding to Bangalore for a holiday for a period of three weeks. I think a change of climate will certainly benefit the minor. Respondents 1, 2 and 3 will hand over the minor to the petitioner to enable her to take the minor with her for a three weeks' holiday to Bangalore. The petitioner will return the custody of the minor on her return to Bombay to respondents 1, 2 and 3.
Liberty to the parties to apply. There will be no order as to costs of the petition.
18. Petition allowed.