S. Rangarajan, J.
(1) Prakash Narain, J., against whose judgment this appeal has been preferred, had, while dismissing the appeal preferred by the father (Dr. Sudarshan Kumar Arora) against the order of the learned Additional District Judge, Delhi permitting Namarata Arora a girl aged about 10, to proceed to the United States where her mother (Dr. Satish Arora) is at the moment, imposed certain conditions in addition to those already imposed by the learned Additional District Judge.
(2) The facts relating to this unfortunate domestic controversy have been noticed at length by the learned Additional District Judge and it does not appear necessary to set them out once again. The Aroras were married according to Hindu rites at Delhi on 21-7-1962. Namarata Arora was born on 6-5-1963. Without noticing the details (some of which are disputed) that led to the couple falling out with each other, it is sufficient to notice for the purpose of this appeal that the wife filed a petition for judicial separation in July, 1972 alleging cruelty by the husband. Having come to know that the wife had resigned the permanent post which she was holding as Assistant Professor of Pharmacology in the Maulana Azad Medical College and that she was leaving India for the United States along with the child, the husband (who is himself an M.D. employed at the Willingdon Hospital and whose subject of research for his M.D. was the growth and development of children) applied, on 4-8-1973, under Section 26 of the Hindu Marriage Act, 1955 (hereinafter called the Act) for the custody of the child and for restraining his wife from removing the child from the jurisdiction of the Court. The learned Additional District Judge had ordered, on 6-8-1973, when the application came up before him, notice for 7-8-1973. The case was transferred, in the course of administrative routine, to another learned Judge. Even in the absence of the husband and his counsel an adjournment was obtained by the counsel for the wife. When representations concerning the urgency of the matter (which had not been disclosed to the learned Additional District Judge) were made he issued an injunction restraining the child from being removed to a foreign country by the mother. It is, however, stated that the wife left for the United States on 8-8-1973 in order to take up an assignment for a temporary period. It is also stated that even during the pendency of the application for judicial separation the wife had visited the United States on a lecture tour for a short period.
(3) Thereafter the learned Additional District Judge ascertained the wishes of the child (which he placed on record) and ordered that the child shall stay with the mother in America till she reaches the age of 12 subject to the earlier decision of the petition for judicial separation. The child, who appeared to the learned District Judge to be intelligent and capable of making a choice, had positively refused to go to the father and expressed her preference to stay with the mother.
(4) During the course of the hearing of the appeal Prakash Narain, J. thought it proper to ascertain the wishes of the child in order to judge whether she was capable of making an intelligent preference. She told the learned Judge, in chambers, that she had a rather hazy recollection of her life when her parents were living together, it being admitted that the matrimonial home had become distrupted (whatever dispute there might be of the actual time when they finally broke away) since 1969-70. The child's conversation with the learned Judge disclosed that she was rather bitter against her father which was primarily due to her impression that her father did, not treat her mother well. To pointed inquiries by the learned Judge she replied that she would rather live with her maternal grand-mother and maternal uncles and aunts than live with her father and her parental grand-mother. She spoke in glowing terms of one of her maternal uncles and complained against her paternal grand-mother. The learned Judge, who did not place absolute reliance on the impression of the child, could not persuade himself to completely ignore her emphatic refusal to go and live with her father.
(5) During the hearing of the appeal by us also, having come to know that the child had been brought to Court, we met the child in chambers but in the presence of the father and one of the maternal uncles and the counsel for both sides. We adopted this course in view of the complaint that was made to us during hearing that the learned Judge had only privately consulted the child-a course which could have been adopted by the learned Judge. We would in this connection refer to the observations of the learned Judges who decided in re K. (Infants) 1963 1 Ch. D. 381 (1). Upjohn, L.J. observed that 'the right of the Judge in infancy cases to see in private the infant or the parents, which should be exercised sparingly, is not for the purpose of eliciting new facts but to discover their personalities and outlook' (p. 406). Davies, L.J. also thought so. This was to enable the Judge, (he observed), 'to obtain, though by no means necessarily to follow, his views as to what course the court should take' (p. 411).
(6) We tried to explain to the child as best as we could that though her parents had unfortunately fallen out it would be best for her to have the love and affection of both of them. She struck us as a very intelligent child revealing capability of understanding and of expression, much above what can be expected of a child of her age ; she is quite healthy and normal-except for the fact that she did not want to stay with her father at all. She expressed her keen disappointment that she was being prevented-or being delayed-in her joining her mother, who loved her and whom she loved. The efforts made by the father to communicate with her by showing her the photographs taken of her in various situations (celebration of her birthday, her dancing with other children etc.) proved to be of no avail. After some time she became irrepressibly emotional, tears coming out of her eyes. This is what usually happens to children of broken homes.
(7) We were keen to give the father (whatever, may have been the reason for his not being able to establish himself with his own child) an opportunity for making his child understand that he loved her, but she refused to believe that her father loved her.
(8) Even subsequently, on 12-11-1973, we directed that further opportunity be given to the father, to befriend his daughter and establish rapport with her by the child being brought every day (except on Sundays) to the Court compound at about 2.30 p.m. for him to spend about a couple of hours each day with his daughter. Beyond the second meet the child refused even to turn up. Both the appellant as well as the respondents have placed before the Court their versions of what took place pursuant to this attempt. There seems no need to be detained by what both of them say concerning the details of what happened. After these efforts we were satisfied that any prolongation to such efforts was not going to be more favorable to the father. The father's approach seems ultimately based on his right as an unimpeachable father and also his concern about the 'father's image', as he calls it, of the child being destroyed and its possible harmful impact on the development of the child's personality in later years. About the right of a parent in this context we shall have more to say presently; the harmful effects of a broken home on a child naturally driven to taking sides with either parent are now better known, but it is seldom within the Court's power to completely annul these harmful effects. This is a really unfortunate human situation and it has to be faced.
(9) We were taken on behalf of the appellant through a number of English decisions. But it has become really unnecessary to go into those cases because the evolution of the statutory as well as the case law (from the case of In re Fynn (1848) 2 De G & Sm 47 onwards (2) has been surveyed exhaustively in a recent decision by the House of Lords in J v. C. 1970 AC 668, (3) it was not cited before the learned single Judge or even before us. We brought the same to the notice of the counsel at the concluding stage of the arguments.
(10) It was no doubt a unique case. The infant in that casae, a boy was born in England of Spanish parents in May, 1958 the parents who were then only doing domestic work in England were not comfortably off. Owing to the mother's illness the boy was taken care of, from the age of 4 days, by English foster parents in their home. From April 1959 he lived with his parents in England who returned to Spain in February, 1960; the infant also went with them. His health suffered when he was in Spain during a period of 17 months; at the parents' request he returned to England to stay with the foster parents. He was brought up by them as their own child but in the faith of his parents. In 1963 after the parents had asked for his return he was made a ward of court. In 1965 the court ordered that care and control of the infant be committed to the foster parents. In 1967, for educational reasons, the foster parents asked for the infant being brought up in the Church of England faith. Subsequently the parents issued a summons asking for the custody, care and control of the infant. At the time of the hearing he was 10 years old; his parents were living in a suitable modem house in Spain: the father was in good employment; his mother's health had been restored; they were not in any way unfit to have the care and control of the infant. The infant had become well integrated in the home of the foster parents who had six children. There was also medical evidence that the infant's chances of making a successful adjustment in Spain were slight and that if he did not the consequences for his future stability and happiness were grave. The trial Judge as well as the Court of Appeal had declined to let the parents have custody of the infant. Before the Court of Appeal, it was urged, in addition, that the trial Judge's order amounted in effect to an adoption order for which the parents consent would have been required and that the order was contrary to principles of comity; these two grounds were negatived.
(11) The following principles, in so far as they are material for the present case, seem to emerge from J v. C. : (1) There is no rule of law that rights and wishes of unimpeachable parents should prevail over other considerations; such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way and must, thereforee, preponderate in many cases; the parental rights, however, remain qualified and not absolute for the purpose of the investigation. Courts have moved a far distance from the originally held view that they have no right to interfare with the sacred right of a father over his child. (2) Growing experience has shown that serious harm may be caused even to young children by a change in custody-a difficulty which cannot be resolved by resort 'to purely theoretical considerations or surrendering to expert testimony. In the case of a happy and normal child, where it does not require special treatment for some physical, neurological or psychological condition, the evidence of a psychiatrist or medical practitioner may be valuable but can only be an element to support the general knowledge and experience of the Judge. A child's future happiness and sense of security being important factors the effects of a change of custody will often be worthy of close and anxious attention. (3) The well-being of the infant is the paramount consideration (as distinct from the same being subordinate to the parents) in the sense of the same not being the sole consideration but the first and paramount consideration, other considerations being subordinate. In other words, the mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child. Any other view would put the Judge exercising wardship proceedings in a straight-jacket and prevent him from fulfillling his duty under the law (Section 1 of the Guardianship of Infants Act. 1925 in that case) to have regard to the infant's welfare as the first and paramount consideration. (4) The discretion of the trial Judge cannot be over-ruled unless it had been exercised on sonic wrong principle.
(12) The learned single Judge, with respect, rightly declined to follow the observations of Cottenham, L.C. in C unpbell v. Mackay (made in the year 1837) (4) about infants b ing taken away to foreign countries. The view of the Lord Chancel or. nearly a century and half old, can hardly fit the modem mode of life when there is a great deal more mobility than there was at that time. Even in other respects the attitude of courts pertaining to husband and wife, parent and child, seem to have undergone a sea change. Not only under the Guardians and Wards Act (8 of 1890) but also under the Hindu Minority and Guardianship Act, 1956 the Court is concerned with the welfare of the minor. The present proceedings, it is important to remember, arise not even under those two Acts but under Section 26 of the Hindu Marriage Act, 1955 which reads as follows:
'INany proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody. maintenance education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made'.
(13) The Indian legislature has in providing for the welfare of the minor, directed the courts to also take into consideration the minor's wishes 'wherever possible'. Such an order is in the very nature of things temporary, and can, as the section itself provides, be revised from time to time, as needed.
(14) Comment was made on behalf of the appellant that the wishes expressed by Namarata Arora are really not her own wishes and that she is under the influence of her mother who does not like her husband; and of her maternal relations who naturally want to please the mother. It is pointed out, in particular, that Namarata Arora had told the learned single Judge that if she was not allowed to go to America she would prefer to live with her maternal grand mother whereas before us she expressed her keenness to go away to her mother immediately and that she would not like to stay here even for a minute, as a sample showing the extent to which Namarata Arora was being tutored. We, however, think the girl's keenness to go to her mother, but not stay here, is only natural and could not be attributed to tutoring. We formed the impression that Namarata Arora is extremely unhappy staying here without her mother; we also provide for her natural desire to see a foreign country, when she had a chance to do so. But the more important thing is that her mother is there. Even during the course of the efforts we made to bring about a rapproachment between the father and child, the father himself increasingly realised this and sought to convince her that he was not standing in the way of her going to the States and offered to take her to the States some time later himself. But these appeals and offers failed to make any impression on the child. The child's age is now what may be regarded as delicate; her mother's counsel and guidance, more than that of any body else, may be very necessary for her just now. It was suggested, on the other hand, that there is a grave risk to such a girl, of this delicate age, going into a permissive society like the United States and when her mother. who has to work and study, may not even be able to give the time and attention that may be necessary. We have fully taken notice of these factors but feel somewhat assured by the fact that the mother being herself an intelligent and educated person with great love for her child would be able to adequately take care of her. The alternative of making her stay in India with her paternal grand-mother (who does not appear to have cut much ice with her) and the father, who is also working may even be worse especially having regard to the fact that she does not seem to like her father at all and is so keen on joining her mother.
(15) This is a kind of difficulty to which Megarry, addressed himself in re F. (An infant) F v. F. 1969 2 Ch. D. 238 (5) in the following terms:
'Ido not think that one can express this matter in any arithmetical or quantitative way, saying that the welfare of the infant must, in relation to the other matters, be given twice the weight, or five times the weight, or any other figure. A 'points system' is, in my judgment, neither possible nor desirable. What the court has to deal with is the lives of human beings, and these cannot be regulated by formulae. In my judgment I must take account of all relevant matters; but in considering their effect and weight I must regard the welfare of the infant as being first and paramount. If it is objected that this formulation does little to define or explain the process, I would reply that it is precisely a process such as this which calls for the quality of judgment which inheres in the Bench; and this is a quality which in its nature is not susceptible of detailed analysis. There is a limit to the extent to which the court can fairly be expected to expound the process which leads to a conclusion, not least in the weighing of imponderables. In matters of discretion it may at times be impossible to do much more than ensure that the judicial mind is brought to bear, with a proper emphasis, on all that is relevant, to the exclusion of all that is irrelevant'.
(16) We are not saying that there are no imponderables in the matter of the child leaving for the United States; there would be imponderables even if she remains here. Broadly speaking, the happiness of this child and her welfare do seem to lie with her being with the mother, who seems both capable and willing, rather than with the father. The mere fact of her having gone to United States, temporarily, to further her professional prospects, cannot be put against her. The discretion has been exercised by the learned Additional District Judge; the learned single Judge has after careful consideration agreed with the order made by the learned Additional District Judge subject, however, to the imposition of an additional condition, namely, that both the mother as well as the grand mother (respondents I and 2) will give cash security of Rs. 10,000.00 and that the mother will inform the learned Additional District Judge within three months of Namarata Arora's reaching the United States of America whether she has been put into a proper school and whether she was being properly looked after. The order passed by the learned Additional District Judge, which has been confirmed, is that Namarata Arora would remain with the mother till she reaches the age of 12 subject to the earlier decision of the petition for judicial separation. Neither the learned Additional District Judge nor the learned single Judge seem to have adopted any principle which can be considered to be wrong; nor have they omitted to bear in mind any relevant and important fact or principle.
(17) A suggestion was made to us on behalf of the appellant that the case should be adjourned for some period in order to have the child examined by a psychiatrist. The House of Lords has sufficiently dealt with the place of such testimony in J. v. C. In the case of a healthy normal child such evidence, which can only supplement what the Judges concerned with the matter feel about it, cannot be of such importance as to necessitate a further postponement of the case for the purpose of the child being examined by a psychiatrist. It may only be additional cruelty inflicted on the child who seems to be on pins and needles to join her mother.
(18) A further appeal was made to us that the amount of security ordered by the learned Single Judge may still further be enhanced in order to compel the mother to return to this country with the child as ordered. Shri Radhe Mohan Lal, learned counsel for the respondents, states that his clients are not in a position to find any further cash security. We are, thereforee, not in a position to order any enhancement of the cash security ordered by the learned single Judge.
(19) The learned counsel for the appellant urged that the appellant should not be made responsible for the expenses of the child visiting the United States or the costs of her education and maintenance till she reaches the age of 12 years, subject to the earlier decision of the case. It is only fair to observe that in the circumstances the father would not be liable for meeting such expenses and costs during the aforesaid period.
(20) The learned counsel for the respondent? brought to our notice that not onaly some months lapsed since the order was made by the learned Additional District Judge but an order of interim nature has also been obtained under the Guardians and Wards Act preventing the child from leaving for the United States and urged that in the circumstances the direction of the learned Additional District Judge directing the child to be produced in court on the expiry of a year from the date of his order (if the case is still pending then on a date previously notified to the court) requires to be modified as 'one year from the date Namarata Arora leaves for the United States'. We, however, direct that the said condition passed by the learned Additional District Judge be modified as 'one year from the date of the cessation of the order, which is said to be now in force, restraining Namarata Arora leaving for the United States'. The first respondent will also promptly inform the learned Additional District Judge before whom the proceedings under the Hindu Marriage Act, 1955 are pending of Namarata's departure for the United States.
(21) Before parting with this case we have only to point out that some of the observations made by us in the course of the hearing of the petition should not have been quoted, if it was done for the purpose of building further arguments on the basis of those observations. Such a practice has been disapproved by Jagannadhadas, J. in Messrs Associated Tubewells Ltd. v. R. B. Gujarmal Modi : AIR1957SC742 (6). The learned counsel for the appellant explains that they were not quoted for building further arguments on the basis of those observations but only to explain the sequence of events. It is needless for us to say more on this because in this case nothing seems to really turn on the observations which have been quoted in C.M. 1703 of 1973.
(22) In the result, the appeal fails and is dismissed but in the circumstances without any order as to costs. C.M. 1703/73 and 1530/73 are also dismissed.