D.V. Shylendra Kumar, J.
1. These two appeals by a divorced mother of a female child who is eight years of age as of now, are directed against a common order dated 20-4-2002 passed on I.A. Nos. 12 and 14 filed in M.C. No. 1195 of 1998 on the file of the Court of the Principal Judge, Family Court at Bangalore.
2. Under the impugned order, the learned Family Court Judge has dismissed I.A. No. 12 filed by the mother under Section 26 of the Hindu Marriage Act ('the Act', for short), seeking custody of the minor child. I.A. No. 14 filed by the father of the child for a similar relief has been allowed and the custody of the minor child by name Kum. Aaruni has been directed to be handed over to the father. It is the aggrieved mother who is in appeal before us and as the order passed is common on the two applications, two appeals have been filed.
3. The applications under Section 26 of the Act had come to be filed in M.C. No. 1195 of 1998 which was a proceeding under Section 13-B of the Act and the marriage between the parties which had taken place on 2-6-1986 had been dissolved by mutual consent and a decree of divorce had been granted as per order dated 17-4-1999. The parents had been appointed as guardians and custodians of their minor daughter and they were to have the custody of the child for a week alternatively. The arrangement of alternative week's custody of the child with either parent, having not been found suitable or convenient, the mother had filed I.A. No. 5, dated 12-8-1999 in the matrimonial case praying for modification of the portion of the order dated 17-4-1999 concerning the custody of the child and had sought for granting permanent custody of the child in her favour. That application of the mother having been rejected as per the order of the Family Court on 11-10-1999, the mother had preferred revision to the High Court in R.P.F.C. No. 123 of 1999, but the revision was also dismissed confirming the order on I.A. No. 5, nevertheless reserving liberty to the parties to move the Trial Court through a petition under Section 26 of the Act for any variation with regard to the custody of the child and the terms about the same as contained in the earlier order dated 17-4-1999. It is thereafter that the mother came up with I.A. No. 12 under Section 26 of the Act seeking exclusive custody of the child for herself and by filing such application on 13-12-1999 and the father also filed a similar application in I.A. No. 14 on 31-1-2000. The Trial Court having dismissed the application of the mother and allowed the application of the father by a common order and the custody having been permitted to the father, the mother is in appeal before us.
4. A few more basic facts are that the parents of the child were married on 2-6-1986; the child was born on 7-12-1994; the wife had filed a petition for dissolution of marriage under Section 13(1)(ia) of the Act as on 17-11-1998 and this was numbered as M.C. No. 1094 of 1998; later on the spouses filed a consent petition for dissolution of the marriage under Section 13-B of the Act as on 11-12-1998 and sought permission to withdraw the earlier petition in M.C. No. 1094 of 1998. The Family Court, while permitted withdrawal of the earlier petition, ordered the Section 13-B petition in M.C. No. 1195 of 1998 as on 17-4-1998 and dissolved the marriage. With regard to the custody of the child, the parties themselves had agreed that the child will be in the custody of either parents each week alternatively.
5. The mother of the child married the famous cricketer Sri Anil Kumble as on 1-7-1999. Subsequent to such marriage, the mother had filed the earlier application for exclusive custody of the child as on 12-8-1999. The parties are Hindu Brahmins. It is asserted by the father of the child that while the parents of the child belonged to Mulakanadu Brahmin community, the second husband of the mother i.e., Sri Anil Kumble belongs to Babbur Kamme Brahmin community. It is also asserted by the father of the child that there are some differences in the culture and customs of these two communities. Both the parents are educated and the father of the child is a businessman carrying on the avocation of a stockbroker and is a registered stockbroker at the Bangalore Stock Exchange. The mother of the child is a holder of a postgraduate degree in English Literature from Mysore University, was in a job in a Travel Corporation for a while and as of now is a housewife. It also transpires from the material on record that the father of the child is residing with his father at Osborne Road, Bangalore, Cantonment Area and he has his business premises at Natasha Penta, Infantry Road, Bangalore, about 2 k.ms. away from his place of residence. The mother, after her marriage with Sri Anil Kumble is residing at his house which is a flat in an apartment known as 'Kumar Paradise' on B.P. Wadia Road, Basavanagudi, Bangalore-4. Their daughter Aaruni is studying in Sophia High School, Palace Road, Bangalore. The school is at a distance of about 4 to 5 k.ms. from the residence of the father and about 6 k.ms. from the residence of the mother. The joint consent petition filed by the spouses under Section 13 contain the terms regarding the custody of the female child, which are as under:
'(8a) The petitioners have full faith in each other with regard to safety and both are duly concerned about the welfare of the child. Keeping the welfare of the child as the paramount concern it is agreed that both the petitioners will continue to remain as joint guardians and the child should be shifted alternative weeks. The child should continue to study at her present school only i.e., Sophia High School, Palace Road, Bangalore until she completes her 10th Standard. She should not be admitted in any Boarding School, under any circumstances.
(8b) Both the parties undertake that the child should be sent to school regularly. The child shall not absent classes for whatever reason except under inevitable circumstances of ill-health.
(8c) The passport should be under the custody of the 1st petitioner and the father's name has to be recorded as legal guardian in her passport until the child attains her majority. The 2nd petitioner shall be given the passport whenever she wants to take the child abroad for holiday trips.
(8d) Any petitioner settling outside the jurisdiction of this Hon'ble Court, i.e., Bangalore shall automatically lose the custodial right.
(8e) The custody of the child shall not be under any third party (friends or relatives care under any circumstances and at any point of time).
(8f) All jewellery of the child should continue to be in HDFC Bank locker, Kasturba Road Branch, Bangalore and the locker fees shall be paid by the father and S.B. Account No. 009123612 corresponding to this locker account should be maintained jointly until the child attains reasonable age.
(8g) All documents pertaining to minor's account and records of the same should be maintained by the 1st petitioner and should be operated by the 1st petitioner in the welfare of the minor. The accounts opened by the 2nd petitioner in the name of the minor shall be operated by the 2nd petitioner.
(8h) Both the parties undertake the safety and welfare of the child. It shall be responsibility of the 1st petitioner to maintain all costs pertaining to child's welfare'.
6. The mother pleaded in her application that she married Mr. Anil Kumble, an Engineer and Professional Cricketer on 1-7-1999 and thereafter she is living with him in happy matrimony; that after her marriage with Mr. Anil Kumble, the child is living with the mother in Sri Anil Rumble's house and is quite happy and likes the environment and the people around her including Sri Anil Rumble's parents; that she is happy in the present atmosphere; that the child is subjected to a traumatic experience every time she has to leave this house and go to her father's home as the child finds father's home a barren place where only the child's grandfather is living, apart from her father. The father of the child being a busy stockbroker and businessman, has to spend more time in his business activity and can hardly spend time at home and the child is left in the company of maids and servants. Grandfather himself is a handicapped person as he is ailing and is not in a position to either take good care of the child or keep her company and the requirements of the child are best looked after by the mother. The arrangement of sending the child to the father's place every alternative week has been causing considerable difficulties and also subjecting the child to a traumatizing experience. The child gets depressed on every occasion when she has to leave for her father's house; that the mother's financial position has also considerably increased subsequent to her marriage with Anil Kumble and she is capable of taking good care of the child if the child is in her exclusive custody and as such prayed for allowing her application.
7. The father, on the other hand, pleaded in his application that ever since the birth of the child, he has been attending to all her needs and requirements; that the mother of the child was indifferent to her needs and requirements and she was more selfish and had treated the need and requirement of the child as secondary to her own requirements; that she was never a good mother; that he has taken all steps to bring up the daughter in a very congenial and elevating environment; that he had inducted the child to sports and music activities and was bringing up his child as per family traditions and customs; that the house of the father is a very big h6use having four bedrooms and their daughter has been accustomed to living in such a spacious house; that she is also greatly attached to her grandfather with whom she has been living ever since her birth; that his sister and her two children also stay or visit their house and can provide company to the child; that he is financially very well off and is capable of providing a very comfortable and purposeful company and look after the needs and comforts of the child; that while he can himself take care of the child being the father, the mother has to depend on her present husband Sri Anil Kumble for her own financial needs and requirements and so also for the needs and requirements of their daughter, which is not a desirable development; that allowing the child to grow up in the atmosphere of Mr. Anil Kumble's house is not conducive to the welfare or the growth of the child; that he can conduct his business from his residential premises also and as such can spend more time in the company of his daughter; that the child is very affectionate towards him and the natural love and affection which the child has towards the father should only be helped to be developed further and not to be curbed by handing over custody exclusively to the mother and it will be in the interest of the minor child to be in the care and custody of the father and accordingly has sought for allowing his application and dismissing the application of the mother.
8. The parties filed objections to the opponent's applications. While the mother examined herself as P.W. 1 and examined three other witnesses in support of the case, the father examined himself and also examined another witness. Parties marked considerable number of documents as Exs. P. 1 to P. 24 on behalf of the mother and Exs. R. 1 to R. 52 on behalf of the father.
9. The child was in the custody of the mother during the pendency of the proceedings, particularly during the pendency of LA. Nos. 12 and 14 before the Trial Court pursuant to an order dated 18-4-2001 passed by the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 17248 of 2000 preferred by the father which was in turn directed against the order of the High Court dated 29-9-2000 passed in R.P.F.C. No. 74 of 2000 filed by the mother questioning the correctness of the order passed by the Family Court in granting custody of the child to the father from 10-6-2000 till the end of December 2000 as compensation for permitting the child to accompany her mother on a tour to Europe between 10-4-2000 and 10-6-2000.
10. The learned Judge, Family Court, while assessing the comparative merits of the averments of the parties, was of the view that the father who is a natural guardian of the child, did not suffer from any disqualification; that he was financially capable of taking care of the requirements of the minor child and that he intended to bring up his daughter in accordance with the family traditions and customs; that the atmosphere in the mother's house after her marriage to Sri Anil Kumble was a little permissive and may not be conducive for the growth of the child; that the conduct of Sri Anil Kumble in describing in the course of his evidence that the child had confided in him that she did not like her father and she was afraid of him, revealed the spiteful and malicious attitude towards the father of the child and the learned Family Court Judge being of the view that the conduct of the mother also revealed such a tendency, concluded that the child should be with the father and accordingly directed custody of the child to be given to the father and while allowed I.A. No. 12 of the father, dismissed I.A. No. 15 of the mother. Thus these two appeals by the mother.
11. The main thrust of arguments on behalf of the appellant-mother is that the learned Judge, Family Court has Kent aside all the essential requirements for considering the applications for the custody of the child; that the learned Trial Judge has not kept in view the welfare of the child as a paramount consideration and has lost sight of these factors and has gone about assessing the qualities and comparative merits of the parents from the angle of the rival pleadings, allegations and accusations made by each one of the parents, the learned Trial Judge has lost sight of the fact that the child who is a female of tender age who requires the constant company, love and affection and care of her mother at this age and depriving the company of the mother and her watchful eyes in her growing, will be detrimental to the interest of the child, that the significance and value of mother's care, affection and company to a female child of tender age has been lost sight of by the learned Trial Judge and the learned Trial Judge has decided the case as though the custody is automatic to the natural guardian who is the father and as he has not suffered any disqualification. Sri G.S. Visweswara, learned Counsel for the appellant-mother, has also elaborated on the requirements of a growing female child of such age and as to how it can be best achieved by the child being left to be looked after by the mother rather than being looked after by the father. It is also urged that there is lack or absence of the company of the elderly females in the house of the father. Child's great attachment to the mother and her inclination to stay in the company is also another aspect which the learned Counsel for the appellant-mother has highlighted.
12. The learned Counsel for the respondent-father, on the other hand submitted that the learned Trial Judge was perfectly justified in granting custody of the child to the father who is the natural guardian even as per Section 6 of the Hindu Minority and Guardianship Act that the custody should naturally follow guardianship; that the father of the child was in a much better financial position to take care of the needs of the child; that the house of the father was more spacious and comfortable for the living of the child; that the child should be allowed to grow in such an atmosphere and in accordance with the customs of her family i.e., as per the family traditions of Jahgirdars, the father Kumar V. Jahgirdar having remained single after the divorce and that the mother having remarried, shows that the mother gives priority to her own personal interest than that of the child, whereas the father has remained unmarried even after divorcing the appellant and that the father is ready and willing to sacrifice his own personal needs and requirements in preference to the needs and requirements of the daughter and her upbringing; that the father is prepared to remain unmarried and take care of his daughter; that the conduct of the mother clearly indicates that she is not a person having much concern for the daughter; that the influence of Sri Anil Kumble on the child is not a desirable influence as he is a globetrotting cricketer and as such may not necessarily adhere to customs and traditions; that there is no need or justification to disturb the order passed by the learned Family Court Judge handing over custody of the child to the father and as such prayed for dismissal of these appeals.
13. In view of the submissions made by the learned Counsels for the parties and the grounds urged in the appeal, the question that falls for our consideration is as to whether the learned Family Court Judge was justified in passing the impugned order granting the custody of the minor child to the father and as to whether the welfare of the minor child is best served if she is given to the custody of the father for her upbringing.
14. The couple, when they presented the consent petition for a decree of divorce, they perhaps thought that the provisions which they had indicated for the future upbringing of their daughter after their separation was with the child being in the custody of either parent for each week, it was a very fair, reasonable and satisfactory arrangement, but they found that it was not so, particularly the mother after her marriage with the famous cricketer Sri Anil Kumble found the arrangement not a very satisfactory one; that it would cause problems to her as also to the child and as such moved the Court for the exclusive custody of the child.
15. The marriage, as stated earlier, was dissolved on 17-4-1999. The mother married Sri Anil Kumble on 1-7-1999 and the first application for modification of the order insofar as the arrangement regarding the custody of the child was filed on 12-8-1999 before the Family Court through I,A. No. 5 in M.C. No. 1195 of 1998. The subsequent application in I.A. No. 12 under Section 26 of the Act before the Family Court seeking for sole custody is only in pursuance of the earlier application. The application of the father through I.A. No. 14 also was for exclusive custody of the child to himself filed on 31-1-2000. In the circumstances, it is really as a counter-blast to the application of the mother as per I.A. No. 12 this application is filed. But, the mere fact that the father came up with similar application later, cannot disentitle him for an objective and fair consideration of his request to have the exclusive custody of the child. In between, the mother had filed I.A, No. 13 before the Family Court seeking for permission to take the child abroad i.e., to Australia. While this application had been rejected by the Family Court, the High Court in revision granted such permission to the mother subject to certain conditions. The mother had filed yet another application in I.A. No. 15 before the Family Court for permission to take the child to Europe between 10-4-2000 to 5-6-2000. This application was granted by the Family Court with the condition that the mother, after her return from Europe tour as on 10-6-2000, should entrust the custody of the child to the father till the end of December 2000. This condition was challenged by the mother by filing revision petition to the High Court in R.P.F.C. No. 75 of 2000 and the said revision petition was allowed by the High Court vide order dated 29-9-2000 and the High Court directed that the custody of the child to be with the mother for a period of one year from the date of the order. It was against this order the father had filed a special leave petition before the Supreme Court in S.L.P. (Civil) No. 17248 of 2000 and the same was disposed off by the Supreme Court inter alia directing the Family Court to dispose off the applications of the parents for exclusive custody within a period of four months therefrom and further permitted the custody of the child to be with the mother with visitation rights to the father during the pendency of their applications before the Family Court. The applications of the two parents have been disposed off by the Family Court vide order dated 20-4-2002 directing the custody of the child to be handed over to the father with visitation rights to the mother. Till this order was passed by the Family Court, the child was in the custody of the mother. It is in this view of this common order dated 20-4-2002 whereby I.A. No. 12 filed by the mother was rejected and I.A. No. 14 filed by the father was allowed, the mother has come up with these two appeals.
16. The matter that had gone upto the Supreme Court was again arising in the context of the custody of the child with either parents, was for the purpose of granting or refusing the permission to take the child out of India by the mother. The Supreme Court also felt that such permissions having been granted pending orders on either parents' applications for exclusive custody of the child, it is more desirable to dispose off those applications which can ward off further applications in the context of the child being taken abroad by the other parent.
17. During the pendency of these two appeals before this Court the custody of the child has remained with the mother and the father has been given visitation rights and the child is allowed to be with the father during the vacation periods under several interim orders passed by this Court.
18. The Trial Court, in the light of the rival pleadings by the parties seeking for exclusive custody of the child which mainly comprised of highlighting the ability and resources for bringing up the child and pointing out the demerits and deficiencies of the other party, was of the view that what was required by the Court to determine was as to whether the existing order dated 17-4-1999 regarding the custody, maintenance and education of the minor Aaruni Jahgirdar requires any modification as claimed by the rival parties
19. If this alone were to be the question for determination, it could have been fairly simple and an obvious answer inasmuch as both the parties wanted modification of the earlier order. But the complication arose only as both the parties also wanted exclusive custody of the child. The Family Court, considering the material on record in the form of oral and documentary evidence led by the parties and the submissions made by the learned Counsel at the Bar answered this point in favour of the father. The Family Court, though has said that the paramount consideration in deciding the guardianship and custody is the welfare of the child, the real question was what was this paramount consideration which was in the welfare of the child in the light of the material that was available before the Court. The material factors which the Family Court has highlighted and has indicated as tilting the balance in favour of the father are:
(i) The comparative financial superiority the father has as against the mother; the father himself being a businessman namely, a stockbroker of a standing and repute and having a large income, whereas the mother, not an earning person, but mainly dependent on her present husband Sri Anil Kumble even for her own living and obviously has to depend upon him for the upbringing of their daughter also.
(ii) The father having a very spacious residence with more than four bedrooms at Osborne Road, which is closer to the child's school, in contrast to the mother residing in a flat in Basavanagudi, not as spacious as the house of the father and also being at a greater distance from the child's school.
(iii) The father's ability to remain at his house and provide company to the child for longer hours as he could carry on part of his business activities from his residence also and the business being only for five days in a week and he having holidays on Saturdays and Sundays which he can devote to the child.
(iv) The company of the grandfather of the child i.e., father's father Sri Venkatasubban being available for the child always and the good number of helpers and servant maids available at the father's house for taking care of the child.
20. The fact that the present husband of the mother namely, Sri Anil Kumble belongs to a different sub-sect of the Brahmin community and that while the child which is brought up by the father is of Mulakanadu Brahmin community, will be exposed to the family customs and traditions of the house in which she is born, she may not have the same facility or advantage if she grows up in the house of Sri Anil Kumble where her mother resides now and she may miss on such traditions and customs of her own family and the clinching factor according to the Family Court was that even as per the customary law of Hindus, the father is the natural guardian of the minor and until and unless it is shown that he has disqualified himself, the mother cannot act as a natural guardian and even Section 6 of the Hindu Minority and Guardianship Act, 1956 having recognised this principle and the mother having not shown that the father suffers from any disqualification, there was no occasion to divest the custody from the father and therefore held that it was in the best interest of the minor child, to be left in the custody of the father. The learned Trial Judge accepted the submission of the Counsel on behalf of the father to this effect and on the basis of the ratio laid down by the Hon'ble Supreme Court in Githa Hariharan and Anr. v. Reserve Bank of India and Anr., : 236ITR380(SC)
21. As against the plus points in favour of the father as indicated above, the learned Family Judge found several demerits as against the mother such as her remarriage after separation when the father had not remarried, her conduct before the parties filed a consent petition for divorce particularly as the Family Court thought that her version that she was living separately from the husband ever since the year 1996 did not appear to be a true version inasmuch as the material on record indicated that they could have lived together even during the year 1998. The fact that the company of the mother may not be an ideal company to the growing up of the child particularly as the mother was required to adjust to a faster life subsequent to her marriage with the famous and globetrotting cricketer Sri Anil Kumble, the tendency on the part of the mother to project a dark image of her former husband; the mother being herself dependent on another person for financial support and also the fact that the evidence of Sri Anil Kumble itself indicated that he may be trying to influence the child to create an impression that her father is not an ideal company for her which betrayed an element of malice and spite on the part of the mother as well as Sri Anil Kumble as against the father of the child which was not a healthy attitude to have and which could affect the relationship between the child and her father and that this should be avoided at any cost and that the mother is not an ideal teacher though the importance of the mother cannot be denied in the well-being of the child. It is on such reasoning that the learned Family Judge has rejected the application of the mother and has allowed the application of the father for the exclusive custody of the child. However, the mother was allowed visitation rights and was permitted custody of the child during the weekends.
22. We have heard the learned Counsels for the parties at great length. They have placed voluminous literature and material considered to be relevant for the purpose of deciding the case and have also relied upon a good number of decided cases in support of their respective arguments.
23. Basically the approach of the learned Judge of the Family Court was when even as per the customary law and statutory law, the father is the natural guardian of the minor, can the custody of the minor child be divested from the father even in the absence of any disqualification on the part of the father to retain the custody of the child? In the normal course of events, this proposition certainly is a sound proposition and in fact when the father and mother are together and there is no conflict of interest as between them and more often than with the father being the supporting parent of the child and the family, the father inevitably is the natural guardian and the mother thereafter. Custody also may follow guardianship as a matter of course. It is only when the parents are not 'seeing eye to eye, when the parents are separated and there is conflict of interest between the two, the question assumes importance. Custody need not follow guardianship in all cases. Section 13 of the Hindu Minority and Guardianship Act, 1956 makes it very clear that the paramount consideration in appointing any person as a guardian of a Hindu minor by the Court, is the welfare of the minor. Section 6 having spelt out as to who acts as natural guardian, it is the father and mother in that order in the case of a minor child, a person to be appointed or declared as a guardian of a Hindu minor by a Court, obviously will have to be in a situation other than what is contemplated in Section 6. Guardianship of a parent is not normally disturbed by the Court unless the parent has disqualified himself or herself and unless it is found that it is not in the welfare or in the interest of the child to continue the guardianship with such parent. Positive disqualification is a very essential requirement if a parent is to be disentitled from guardianship of the minor child. However, in the case of custody, it is slightly different. It is quite possible that while one parent can continue to be the natural guardian, it may be in the interest and welfare of the child to leave the custody of the child with the other parent. Disqualification of a parent is not a very essential element to shift custody from parent. Even while the parent had not disqualified himself or herself from being the natural guardian of a minor child, it may still be found that the minor's interest is better served if the custody of the child is with the other parent.
24. The perception that the father being the natural guardian of a child and even as between the two parents being the first person, is necessarily linked to the traditional concept and role of a father in a Hindu family. Traditionally and conventionally it is only the male members who are the breadwinners of a family in a Hindu family. A person who is entrusted with the guardianship of a minor child should be both financially and physically capable of protecting the interests of the minor child. This role was always played by the father. The male was considered always superior both in his ability to earn the livelihood for a family and also to protect the family from outside attacks. Society has moved a long way from this traditional and conventional concepts. Gender equality is the accepted and developing trend and financial independence is as much the domain of the female members of the family with the female members also entering into different avocations and being in a position to earn. Many a times the wife is better off financially because of her superior skills and better employment than her husband. Particularly in situations where both parents are financially independent and need not necessarily depend on the other, the traditional concept of the father being the first guardian may not hold water. At any rate, on the question of guardianship also, the approach cannot be any more as to whether the father has incurred any disqualification to replace him by the other parent. It is quite possible that even when the father of the minor child has not suffered any disqualification, it may still be in the interest and welfare of the child to appoint the mother as the guardian. It may be more so in the case of entrustment of the custody of the minor child. Insofar as the custody of the child is concerned, the significance is the manner of upbringing of the child as to in what atmosphere the child is brought up, as to whether the child is provided with necessary facilities for a good and proper living, as to whether the child is provided with quality education, as to whether the child is helped to develop an enlightened and healthy personality and ultimately as to whether the child is so taken care of that the child feels happy, content and can grow up as a responsible member of the society and a good citizen of the country. It is in the context of helping a child to achieve this objective, the role of the parents has to be examined and as to which of the two parents are in a better position to provide the child such requirements.
25. The role of the mother in the development of a child's personality and her ability to do so can never be doubted. In fact, a child gets the best protection and education only through the mother even in nature. It is a most natural thing for any child to grow up in the company of one's mother. In fact the question always should be as to whether a child should be deprived of the company of the mother. Company of the mother is the most natural thing for a child. That is what nature has evolved over a period of generations. So long as the mother does not suffer from any disqualification, she does not disentitle herself to bring up her child. It is only because of her own misconduct or misdeeds or when she is not in a position to take care of the child due to reasons financially or otherwise, the custody should be shifted from the mother. Neither the father nor any other person can endow the same kind of love, affection, care and sympathies to a child that as of a mother. Company of a mother may be in fact much more valuable particularly to a growing up female child and until and unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The question is not so much as to whether father or mother gets the custody of the child, but as to whether the child should be deprived of the company of the mother. In fact, it can be presumed as a proposition of considerable weight and justification that the company of the mother is always in the welfare of the minor child until and unless the contrary is established. This basically we think, should be the approach of any Court while considering the question of granting the custody of a minor child to either of the parents. The mother, because of her position alone, scores over the father and to alter this position, it calls for definite material indicating the disqualification or disentitlement on the part of the mother vis-a-vis the adverse interest to the child or the welfare of the child being put to jeopardy.
26. We are of the view that the approach of the learned Judge of the Family Court is definitely an erroneous one as the learned Judge did not examine the question in the proper perspective particularly in the context of the paramount consideration being the welfare of the child.
27. In disputes relating to the custody of the minor children, the consideration can only be the welfare of the child and the rights of the parents has to yield or give way, is a proposition now very well-established and recognised by Courts. The historical concept that the father of a minor child is in a better or superior position to take care of the child has as of now given way to the modern thinking that it is not necessarily so; that either parent is equally capable of taking care of the child; that the question of custody should always be decided by taking into consideration the facts and circumstances that prevail in each case; the ability of the parents to provide necessary facilities--environmental, companionship, love and affection, are all factors which Courts have to bear in mind in deciding the question. The question is not viewed any more from the angle of 'which parent has a better right', but from the approach as to 'the company of which of the two parents is better suited for the integrated development of the personality of the child' and 'as to whether the child receives the necessary inputs if it is in the company of a particular parent, for a healthy growth and development of the personality of the child'. In fact, as one could perceive, the child always needs the company of both parents for such growth and development. The child desires and yearns for the company of both parents. Unfortunately in a situation where it has become inevitable that the parents part company and they live separately, the child can have the company of only one parent at a time and not simultaneously. This is a situation brought about by the parents and inevitably the child is the victim and whatever arrangement may be made either by the parties themselves or on their failure, by the Courts, as ultimate guardian of a minor child it will always fall short of a satisfactory arrangement from the child's point of view and the child does suffer. Therefore, the question is to be approached from the angle of mitigating the suffering, the hardship and the psychological trauma that the child may undergo due to separation of the parents. The harsh reality is that the parents can no more live together and particularly in a situation of the present nature where the parents have not only divorced and one of the parents has married thereafter. What promotes the interest of the child, what are the possibilities to promote the welfare of the child, how best the child's suffering hardship and trauma is mitigated, are the considerations before the Court.
28. The emerging trend that the father himself is not necessarily the sole or the first guardian of a child, particularly when the parents are separated, was indicated and recognised by the Supreme Court quite early in the case of Rosy Jacob v. Jacob A. Chakramakkal, : 3SCR918 (more familiarly known as Chakramakkal's case). Though this was a case which arose essentially under the Guardians and Wards Act and not under either the Hindu Minority and Guardianship Act or the Hindu Marriage Act, the principles laid down are equally applicable to any custody case as laid down by the Supreme Court in this case. The following extracts from the decision of the Supreme Court in this case illumines our path in the context of the present appeals also.--
'There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children--which every normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the husband on the allegations of immorality against the wife which, in our firm opinion, he was not at all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored in considering the question of custody of the children in the present case. The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children--being normally the earning member and head of the family--but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has 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 promoted 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'.
29. Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, : 1SCR49 is yet another landmark case of the Supreme Court where the Supreme Court had occasion to dwell upon the principles governing the grant of custody to either of the disputing couple, In this case again, the Supreme Court had occasion to observe that guardianship and custody are two separate and independent aspects and that guardianship need not necessarily mean the custody will follow. The Supreme Court also had occasion to indicate the powers of the Courts to interview a minor child and to ascertain the child's wishes and to satisfy itself in the context of deciding the question of entrustment of custody to other parent. However, the Court did strike a note of caution that such interviewing of minor children should be only if the Court is of the opinion that the minor is capable of indicating an independent preference which can also be an input in the matter of deciding the welfare of the child. The Supreme Court also cautioned that interviewing a child to ascertain a child's preference would be only for the purpose of determining as to how the child's interest will be promoted if the child is in the company of one or the other of the parents; that it should act as an input in determining the question as to causing the separation of the child from one of the parents which will result in a traumatizing experience to the child, which is definitely adverse to the welfare of the child and definitely not by passing on the responsibility of determining as to what is in the welfare of the child to the child itself by posing such questions which may give a hint or indication to the child that she is asked to decide as to in the company of which parent she prefers to stay henceforth. The Supreme Court has cautioned that a responsible firm decision of this nature may not be capable of being taken by the innocent minor child. It could on the other hand cause a great deal of strain and even embarrassment to the minor child. Sri V. Tarakaram, learned Counsel for the respondent-father had occasion to bring this decision to our notice and submitted that preference if any indicated by the child will be of no consequence in the matter of deciding the question.
30. We had occasion to talk to the child Aaruni on two occasions. On the first occasion i.e., on 20-11-2002 the child had come to the Court directly from her school and while she was in the custody of the mother. The second occasion was after an interval of 14 days, i.e., on 5-12-2002 when the child came to the Court after attending the school and while she was in the custody of the father for the last about 14 days. One very satisfactory aspect and reassuring revelation was that the child remained very poised, bright and lively on both the occasions. It is the good fortune of the child and a matter of considerable relief and satisfaction to us that the child is affectionate towards both parents; that she likes the company of both parents and that she has no complaints against either parent. With all this, the child indicated that she would still prefer to be in the company of her mother and visit her father. The child said that she indicates this preference as she loves her mother so much. When we asked her to describe the extent of her love, she said it is as big as the sun! This is a very natural and normal reaction of any child and is no different in the present case. Though this definitely is not the sole or predominant consideration in the matter of deciding the entrustment of the custody, it did act as an input and information which has put us at considerable ease and a positive factor in arriving at our decision.
31. The Supreme Court also had occasion to observe as to what was for the advantage of the child: living with the parents or studying in a boarding school. The effect of a happy home atmosphere, company of affectionate, caring and guiding parents, a home free from tension and acrimony, are all indicated to be the factors promoting the welfare of the child. While it was felt that not all parents may be capable of affording the expenses of schooling of children in a boarding school which perhaps was thought to be a better environment for the children, the trend appears to have undergone a change as of now and the company of the parents who can attend to the needs, requirements and take care of children with love and affection, is thought to be much more advantageous and promoting the welfare of the children rather than the child's stay in a boarding school. Perhaps it is almost impossible to generalise in these matters. In this background, a mere financial superiority of one parent in itself cannot be considered as a factor which can promote the welfare of the child by providing better material facilities. The financial capability of the parents is relevant factor only to the extent of indicating as to whether the parent is capable of providing the requisite and necessary facilities to the child and not as to whether one parent is in a position to provide many luxuries to the child and the other not. In the present case, the financial position of either parent is good enough to provide the facilities to which the child is now accustomed to and to continue her education in the school in which she is studying. Financial inequalities if any between the parents is not a factor which can in any way affect the welfare of the child in the present case.
32. Insofar as the companionship to the child at home is concerned, the argument of the learned Counsel for the appellant-mother that while the house of the father of the child is without any grown up female member, there are other female members in the house of the mother of the child apart from the mother herself. This submission is supported by the material on record. Though the learned Counsel for the respondent-father has submitted that at the house of the father of the child father's sister is a frequent visitor available for company and guidance to the child, it is conceded that this sister has her own family and house whom she has to take care and can at best be a visitor to the father's house. Though it is submitted by the learned Counsel for the respondent-father that at the father's house, apart from the father and the grandfather there are a good number of servants at the beck and call of the child and they can also take care of the child when the father is away at his work, it does not inspire confidence in us to leave the child in the custody of housemaids and servants particularly when there is an alternative to leave the child in the custody of her mother herself.
33. The following passage from Chakramakkal's case, supra, again is very apt in the present situation also.--
'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. It has not been suggested at the Bar that any grown up woman closely related to Maya alias Mary would be available in the husband's house for such motherly advice and guidance. But this apart, even from the point of view of her education, in our opinion, her custody with the wife would be far more beneficial than her custody with the husband'.
34. In Githa Hariharan's case, supra, the Supreme Court yet again asserted that the expression 'natural guardian' occurring in Section 4(c) of the Hindu Minority and Guardianship Act takes within its sweep the father, mother and the husband in the case of the married girl. The Court clarified that use of the words 'the father' and after him 'the mother' occurring in Section 6(a) of the Act does not necessarily mean that it is in that order and the mother becomes a guardian only after the father. The concept of gender equality was recognised and it was held that both parents were guardians of equal importance and right particularly in the light of development of the lot of women in general and the ability and capacity of the particular parent in a given case. The Supreme Court was dealing with these aspects and it would be useful to extract the same as under.--
'43. Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956, it is to be noted that the validity of a legislation is to be presumed and efforts should always be there on the part of the law Courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law Courts would be within their jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise and it is on this perspective that we may analyse the expressions used in Section 6 in a slightly more greater detail. The word 'guardian' and the meaning attributed to it by the Legislature under Section 4(b) of the Act cannot be said to be restrictive in any way and thus the same would mean and include both the father and the mother and this is more so by reason of the meaning attributed to the words as 'a person having the care of the person of a minor or his property or of both his person and property. . . .'. It is an axiomatic truth that both the mother and the father of a minor child are duty-bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word 'guardian', both the parents ought to be treated as guardians of the minor. As a matter of fact, the same was the situation as regards the law prior to the codification by the Act of 1956. The law, therefore, recognised that a minor has to be in the custody of the person who can subserve his welfare in the best possible way--the interest of the child being the paramount consideration.
44. The expression 'natural guardian' has been defined in Section 4(c) as noticed above to mean any of the guardians as mentioned in Section 6 of the Act of 1956. This section refers to three classes of guardians, viz., father, mother and in the case of a married girl, the husband. The father and mother, therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally, it is to be noted that in the matter of interpretation of a statute, the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word 'guardian' in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in Section 6(a) and in that perspective, the mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tantamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression 'after' therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the Legislature.
45. Be it noted further that gender equality is one of the basic principles of our Constitution and in the event the word 'after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter, the word 'after' shall have to be interpreted in terms of the constitutional safeguard and guarantee so as to give a proper and effective meaning to the words used.
46. In our opinion, the word 'after' shall have to be given a meaning which would subserve the need of the situation, viz., the welfare of the minor and having due regard to the factum that law Courts endeavour to retain the legislation rather than declare it to be void, we do feel it expedient to record that the word 'after' does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as 'in the absence of--be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word 'arter' as used in Section 6 then and in that event, the same would be in accordance with the intent of the legislation, viz., the welfare of the child'.
35. These principles equally apply in the matter of deciding the question of entrustment of a minor child to the custody of either parent. The vital factor being again to promote the welfare of the child which is the same for consideration of the question of guardianship also. In the following cases decided by the Supreme Court, it was considered that the custody of a minor child with the mother was beneficial in promoting the welfare of the child.--
(1) Chandrakala Menon (Mrs.) and Anr. v. Vipin Menon (Capt.) and Anr., : (1993)2SCC6 ;
(2) Smt. Manju Tiwari v. Dr. Rajmdra Tiwari and Anr., : AIR1990SC1156 ;
(3) Poonam Datta v. Krishanlal Datta and Ors., : AIR1989SC401
36. While the learned Counsels for the parties have made submissions at great length and by drawing attention to the oral and documentary evidence on record for the purpose of highlighting that the company of one parent is not very conducive for the welfare of the child vis-a-vis the company of the other parent, particularly by drawing our attention to either the lack of facilities at the house of the other parent or by trying to attribute that the atmosphere, style of living and the attitude of the other parent is not very desirable for the growing up of the child, we do not propose to go into the details of such allegations inasmuch as we do not really see any glaring deficiency or disqualification which either parent suffers. We must bear in mind that the dispute is between an estranged couple who could not bridge their differences and as such parted company though through a consent petition, they were not on very cordial terms at that time. In this background it is quite natural that either parent may see defects and disqualifications with other parent but as observed earlier, fortunately for the child and more reassuringly for us, in the present case, the child itself does not see any such disqualification in either parent. The child does not have negative feelings towards either of the parents.
37. On an assessment of the material on record and in the light of the submissions at the Bar, we are of the view that the Trial Court has given undue attention and importance to the evidence of P.W. 2, the present husband of the mother and has attributed unwarranted remarks to him in saying that this person is trying to vitiate the mind of the child and to cause prejudice towards the father by the child. This is not an inference that was warranted on the material on record. We say so because if such was the attitude and the attempt on the part of the present husband of the mother, the same would have easily reflected in the conduct and the attitude of the child, who is in his company or accessible to him for the past more than three years, which is sufficient duration to influence the impressionistic mind of any child, but we did not notice any such reflections in the conduct and attitude of the child when we interacted with the child. On the other hand, as indicated earlier, the child expressed only positive feelings towards both parents. We also cannot agree with the learned Counsel for the father that the presence of the present husband of the mother will have an undesirable influence on the child. The mother getting married again after the divorce, cannot be termed as an act of selfishness as is sought to be projected by the learned Counsel for the respondent-father. Developments and progress in law is very slow and tardy. Changes brought about by codified law to any customary or conventional practices are always opposed and decried as lowering the values in the society. We, at any rate, cannot attribute any virtue to the father who has remained not married subsequent to divorce and/or attribute any selfishness to the mother for her marriage after her divorce with the respondent. We cannot also accept the submission on behalf of the respondent-father that the father has remained unmarried after his divorce with the present appellant only with a view to promote the welfare of the child. We merely accept that it is a fact that he has remained unmarried so far and as to what could be the outcome on the aspect of the welfare of the child in the context of deciding the entrustment of custody of the child and nothing beyond.
38. One particular aspect which was highlighted while making submissions at the Bar and which we may have to refer to is in the context of the custody of the child during such periods when the mother of the child may go out of the country while accompanying her present husband and which aspect can have a disturbing effect on the studies and education of the child. It is presumed that the mother of the child necessarily accompanies her present husband whenever he has to travel out of the country in connection with his professional activities. It need not be necessarily so. It is for the parent having the custody of the child to so work out as not to disturb the education of the child. Earlier arrangements indicate that on such occasions the child was being left in the custody of the other parent who remains in the country and can be taken care of by that parent. When both parents are yearning for the custody of the child, a development of this nature should be a welcome development for the parent who is seeking custody and should not be used to spite the other parent. We would only like to stress here that we are not examining the question from the angle of deprivation of the company and custody of the child from one parent to the other parent as is sought to be projected by the learned Counsels on both sides, but examined the question as to how best the companionship of the child with the parents is arranged so that it is to the maximum benefit and welfare of the child. It should be borne in mind that we are not disqualifying either parent from having the custody of the child, but having regard to the paramount consideration of the welfare of the child we have examined this question. We can only refer to the wise and sound counselling of David S. Pollock, Attorney at Law to his clients who says and we quote:
'We strongly believe that no Court can determine the best interests of a child as effectively as the child's own parents. The Family Division Judges are motivated by the best intentions, but they do not have sufficient knowledge about the children or their parents to make the best decision for every child. The Judges and Court appointed custody evaluators have very limited time and resources t6 investigate the numerous factors that may affect a child's best interests. That is why we always urge our clients to attempt to settle their custody cases. In our experience, you will be more satisfied with a custody arrangement that you have helped to fashion than a custody arrangement imposed by a Court'.
39. The situation more or less applies in the Indian context also. A child may always prefer to have an arrangement which is worked out by its own parents rather than being one imposed by the Courts. In an arrangement which is worked out by the parents themselves, the child will have its say in the matter, it can indicate its preferences, request for suitable modifications and feel at ease, feel happy and contented. When an arrangement is worked out by a Court order and when the child is exposed to the Court proceedings, the child becomes only more conscious of the separation of its parents; that they cannot live together any more, though that is the ardent desire of every child; and that it is subjected to Court orders in the matter of keeping company with either of the parent which will give a feeling that the child's freedom is taken away. It was in this context that we had suggested to the parents in this very proceedings and on earlier occasions when the question of interim custody and the visitation rights or shifting of custody during vacations came up before the Court that an order will be passed which would suit the convenience of both parents and which could work to their satisfaction. Fortunately, on one such occasion the parents did agree to work out an arrangement though for a short period by themselves and that arrangement was made an order of the Court.
40. We have found in the instant case that the mother does not suffer from any disqualification or drawbacks. The mother, on the other hand, is also well-educated and can support the child financially. While the mother can keep full-time company of the child, the father can keep company and take care of the child when he is not attending to his business activity being a stockbroker. The child being a female child of tender age. companionship of the mother is a very valuable thing for the healthy growth and development of the child and its personality. We are of the clear opinion, that no child should be deprived the company of his/her mother unless there are compelling reasons and circumstances for doing so. In the present case, we do not find any reason at all to deny the child the regular companionship of her mother, leave alone any compelling circumstances. We are of the clear view that the child's interest and welfare best served and promoted by the child continuing in the company, care and custody of her mother. However, it does not mean that the father should be deprived of the company of the child. The child can join his company during the weekends either on a Saturday or a Sunday from morning till evening. The child can also be with the father during half the period of vacations in the school in which the child is studying. The parents can work out as to which half of such vacation the child has to be in the custody of which parent. We indicate that the child can be given to the custody of the father two days after the closure of her school for as many days as constitute half the period of total vacation of the particular vacation and restore to the custody of the mother immediately thereafter unless the parents agree for any other arrangement for custody of the child during vacations. The child otherwise will be in the custody of the mother and the father is given the right to visit the child even while the child is in the custody of the mother with prior intimation and mutual arrangement. We also make it clear that it is always open to the parties to have slight modification in this arrangement if situation so warrants - we stress that if both, the, parents are agreeable to such arrangement.
41. Though the learned Counsels on both sides have relied upon and referred to a good number of decided cases, we do not propose to deal with all those decisions other than the decisions referred to earlier in our present judgment having regard to the nature of problem that has arisen and the manner in which we have dealt with this question in this judgment. We are of the view that those decisions do not militate against the views we have expressed in this judgment and do not one way or the other change or influence the decision in this judgment. We accordingly do not propose to refer to them in detail.
42. In the result, we set aside the judgment dated 20-4-2002 of the Trial Court under appeals, partly allow the application of the mother for custody filed under Section 25(1) of the Hindu Marriage Act in I.A. No. 12 and dismiss the application of the father in I.A. No. 14 for exclusive custody of the child in terms indicated above. This arrangement may be operative during the minority of the child.
43. The Court being the ultimate guardian of the minor child Aaruni, we reserve liberty to the parties to move the Court for such variations/modifications if they become necessary under any changed and compelling circumstances.
44. We have not indicated as to any arrangement towards the costs of maintenance as we have found that both the parents are financially capable of contributing to the maintenance of child and we would not like to restrict such contributions that can be made by the parents by a Court order. It is for the parents themselves to take note of this aspect and to provide for the child so that her upbringing and other requirements are well taken care of. We therefore reserve liberty to the parties to move the Court on this aspect if either parents find that things are not working to the benefit and welfare of the child on the financial front.
45. In the circumstances, appeals are allowed. Parties to bear their respective costs.