M.P. Thakkar, J.
1. An out-dated 12th century approach has been made in a proceeding under the Guardians And Wards Act in relation to the custody of a child and the question that has been placed in the focus by the trial Court is as to who has a preferential right to the custody of the child, the father or the mother, rather than the real question as to the welfare of the child. Instead of posing the question, what is in the interest of the child and whether the welfare of the child which is the paramount consideration in such matters demands that the custody should be with the mother or the father, the learned trial Judge has concentrated and laid stress on the question as to who is entitled to the preferential custody and as to who is at fault in the matrimonial dispute between the parents.
2. The dispute relates to the custody of a male child who was about six years of age when the application for custody giving rise to the present appeal was instituted in 1970. The child, Subodh, was born on February 14, 1964. It appears that the father of the child who was at the material time in Uganda, made an application through his sister claiming custody of the child. It is not necessary to refer to the grounds mentioned in the petition for custody, for ultimately what matters are the grounds made out in the course of the evidence. The evidence on the part of the father consists of the testimony of his sister. No other evidence has been adduced. He himself has not come over to India to give evidence; nor has he applied for his evidence being recorded on commission. It has been stated at the Bar that subsequently the father has migrated to United Kingdom and is at present in U.K. On behalf of the mother, she has examined herself as a witness.
3. From the evidence of A.W.I. Kokilaben, the sister of the father, it appears that the only ground which is made out by her is that the mother has no independent source of income and that she is being maint ained either by her father or by her brother. According to her, the minor is not getting education in 'an atmosphere and society in which he was brought up in Africa' (when the minor came over from Africa along with his mother, he was only five years old). Her evidence on the point may be quoted for the sake of preciseness:
In the beginning minor Subodh was sent to a school near Haluria Chawk, Bhavnagar. I do not know the name of that school. Opponent No. 2 resides in Kachhiyawad, Meankwadi, Bhavnagar. That is a crowded locality. Minor Subodh cannot get at that place the society in which he was brought up in Africa. The society in Kachhiyawad Meankwadi area is inferior to the society in which he lived at Africa.
later on, this is what the witness states:
If minor Subodh continues to stay with opponent, he would not get the education training and the culture which are required in the present day life. Opponent No. 1 has passed vernacular final examination.
It is on the basis of this evidence that the father who has instituted the petition through his sister, but has not come over to India to give evidence, claims to deprive the mother of the custody of the child and prays for the custody being made over to him, presumably through his sister. The evidence of A.W.I, shows that she has no personal knowledge as to what the father is doing in the foreign land. Admittedly, she has not gone to Uganda after 1962. She has no personal knowledge as to what the father is doing where he is living, what he is earning, with whom he is living and what he is in a position to do in order to educate the child and to bring him up. There is no evidence on record whatsoever to show whether the father is living alone or is living with some one else. It is not known where he is employed, what are his sources of income, and what he is able to save. Nor do we know what arrangement he has made for up-bringing of the child. We do not know for how many hours he would be available at his home in order to look after the child. It is also not known what arrangement is intended to be made for taking the child overseas. Will the child get companionship if he is taken over to a foreign land? Will he be able to pick up the studies even if the father makes some arrangement to admit him to some school? - a re all questions which remain unanswered. So far as the present position is concerned, the evidence shows that the child is attending a school in Gujarati medium- and is being educated. It is not shown that he is not being properly educated or that he is not being properly brought up. Nor is it shown that he is backward in studies. The learned trial Judge failed to discharge the elementary duty to consult the wishes of the child. It is surprising that the learned trial Judge got himself entangled with the question as to who was at fault in the separation between the two spouses instead of concentrating on the question as to what was in the interest of the child and what was good from the point of view of the paramount consideration of his welfare. The least he could have done was to question the child. When the appeal initially came up for hearing, the mother was directed to bring the child to the Court for being consulted in regard to his wishes in this matter. The minutes recorded at the time of the interrogation of the minor are on record. The statement made by him in answer to questions posed by me in the Chambers reads as under:
I am 10 years old. I am studying in Std. IV in the Rajula Municipal school. I secured 50 marks at the last examination and secured the second rank in the Class. I am living at Rajula with my mother. The household consists of my maternal uncle who is a P.W.D. Officer, my maternal aunt (Masi) and my maternal grand-mother. I am happy there. My father's name is Anantrai. I last saw him when I left Africa about five years back. He does not write to me and I do not write to him. We do not even exchange Diwali greetings. My father used to love me. He used to give me his affection.
After the aforesaid statement was made, I questioned the child when no one else was present and the child broke into tears when I asked him whether he would like to go to his father who was in London: He stated in clear terms that he would not like to go there and that he was happy with his mother and would not like to leave her. This statement was made in the absence of the mother. Even the Advocates of the parties were not kept present so that I could ascertain the wishes of the child uninfluenced by the presence of any one else. This aspect will have to be borne in mind in dealing with the question as to what is in the interest of the child. Of course, the child cannot have any decisive voice in the matter. He is a minor and an immature child who does not know what is in his interest. But, before an order for custody is passed, my conscience must be satisfied that his welfare lies in an order for custody being passed in favour of one of the two parents, and, in doing so, one of the valid and germane considerations would be to take into account the wishes of the child.
4. Before turning to the facts of this case, it will be appropriate to reflect upon the considerations required to be kept before the mental eye in deciding a question as regards the custody of a minor child. The overriding consideration, it can scarcely be doubted, must be the welfare of the child. Every other consideration must be subordinated to this paramount consideration for the very jurisdiction which is entrusted to the Court by the society is with an eye on the welfare of the child. So often the expression 'the right of the father' or 'right of the mother' is employed. The expression 'right' is altogether out of place in considerations relating to the custody of a minor child, unless one were to proceed on the assumption that the child is a chattel or a property of the parents. The expression 'right' is used in the sense of the obligation cast by the society on the parents. In other words, what is meant is: who would be considered preferable to discharge the obligation towards the child with a view to promote his maximum welfare-the father or the mother. It is in this sense that the expression 'right' is used and not in the sense of any legal right to have the custody as if a child were an article of property. It must also be realized that a child in his formative years needs tender care, love and affection more than anything else. It is unnecessary to dig deep in the books of child psychology in order to realise that the love, affection, warmth and understanding the child demands and gets in his childhood play a pivotal role in his up-bringing and shapes his ultimate personality and in a way his destiny. And, therefore, the consideration regarding the need for catering to this human craving for love and affection in the years in which the foundations of his personality are really laid must be accorded the foremost place. That can be ignored only at the peril of doing great psychological damage to the personality of the child. The Court may not be so much concerned with the plight of a deserted mother though forced separation from her only child who is all that is left to her from the ruins of her matrimonial world would be a great calamity. But the sympathy of the Court for her cannot play any vital part in the ultimate decision as to who should have the custody of the child -the father or the mother-for the focus of anxiety and concern of the Court would be the welfare of the child which would overshadow all other considerations. Even if that consideration demands the sacrifice of the feelings and emotions of the father or the mother, the Court would not swerve from its destination. And pragmatism and the experience of the world has taught one nothing if he does not realize that by and large love and affection is not a fountain which can be turned on or turned off at the desire of a person. So also the Court cannot be indifferent to the trauma that a forcible separation of a child from a natural mother, be it at the behest of the Court, is almost always likely to leave. These considerations must be called into aid in the present case as well.
5. It must be realized that for a growing child, nothing is more important than the love, affection and the care he gets. If a child does not get nourishment from these sources of love, however well-fed he may be his inner emotional world is likely to be shattered. It must also be borne in mind that to separate the child from his mother at a tender age when he is passing through a delicate stage in his life and when his emotional world is being slowly built would be to cause a great trauma on his inner world and might leave scars which would be difficult to heal during the rest of his life. This is another aspect which will have to be kept before the mental eye in c conceding this question which may have far-reaching impact on the future of the child.
6. On considering all the relevant aspects, the following considerations emerge:
(i) From the age of 5, the child who is at present about 12 years old has been living with his mother and away from the father,
(ii) The child needs the love and affection of the mother and if he is entrusted to his aunt (father's sister) on behalf of the father, his psychology is likely to suffer a trauma,
(iii) It is not shown that he is not being educated properly or not being brought up properly at present,
(iv) It is not known who will look after the child if he is sent to United Kingdom,
(v) It is also not known whether the father has the resources and the facilities to bring up the child and to educate him properly,
(vi) Till the age of 12, the child is being educated in the Gujarati medium and it would be very difficult for him to pick up a foreign tongue and learn through a foreign media,
(vii) The child will be taken away, not only from out of the jurisdiction of the Court, but from out of the territories of the country and the Court will not be in a position to ensure that the child is being properly brought up and being properly educated and that his welfare is being properly attended to. (viii) At the tender age of 12, he will be separated from his mother and he will not be able to see his mother for very many years,
(ix) There is no guarantee that the child will not be employed as an unpaid attendant instead of being brought up and educated for taking up a station in life in keeping with such talents as he possesses,
(x) The child himself does not wish to be separated from the mother and does not wish to go and live with the father,
(xi) It is not known with whom and for how long he will live till arrangements are made for his migration to U.K. It is also not known that such arrangements can or will be made.
(xii) It is not known with whom the father is living and it is also not known as to whether he will be able to tend to the child and to provide him with not only the physical necessities of life but also the emotional necessities.
7. When the matter came up for hearing on February 13, 1976, I made an inquiry from Mr. Hathi as to whether he was in a position to state if the applicant was willing to step into the witness-box in order to satisfy the Court that it would be in the interest of the minor to entrust the custody of the child to him. An inquiry was also made as to whether if the father was so anxious for the welfare of the child, he was prepared to make financial arrangements for keeping the child in some good boarding in a city in order to enable him to take education in some good school. The learned Counsel for the father, Mr. Hathi, replied that he was not in a position to answer these questions and would require some time to obtain instructions from his client. He wanted time upto February 27, 1976. The request was granted. Mr. Hathi made a statement that he was writing to his client in London in order to obtain instructions from him and that he was addressing the following two questions to him:
(1) Whether he is willing to step into the witness-box within such reasonable time as he may require to satisfy the Court that he will be able to look after the minor properly and to educate him properly in case the Court ulti mately formed the opinion that the welfare of the minor so demanded and as to whether he was in a position to make the necessary arrangements for his migration to U.K. and if so, within what time?
(2) Whether he was prepared to make financial arrangements for keeping the minor in some boarding in a city of his choice (except Bhavnagar) in India in order to educate him in a reasonably good school of his choice?
8. On February 27, 1976, Mr. Hathi made a statement that he had still not received a reply and in order to enable him to reply, the matter was adjourned from time to time. Four month have passed. Mr. Hathi states that his client does not reply to his letter and does not give him any instructions. And yet Mr. Hathi contends (which does not carry conviction) that his client should be awarded the custody of the minor child.
9. The learned trial Judge has ignored the settled legal position which has been stated by the Supreme Court in Rosy Jacob v. Jacob A. Chakra-makkal A.I.R. 1973 S.C. 2090, in the following passage from paragraph 14 of the judgment:
The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading, It does not take full notice of the real me of the statutory purpose. In our opinion the dominant consideration in making orders under Section 25 is the welfare of the minor children and in considering this question due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case. 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 lo their custody under Section 25 merely because there is no defect in his personal character and he had attachment for his children-which every normal parent has.
A little later, the Supreme Court has stated the law as under:
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 .nay 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.
In my opinion, the aforesaid facts and circumstances leave no option to the Court but to hold that the welfare of the child consists in his being allowed to remain in the custody of his mother. On the basis of the material on record, no other conclusion is possible. 11.
10. The appeal, therefore, succeeds, the order passed by the learned trial Judge is set aside. The application made by the father through his sister claiming the custody of the child will stand rejected with costs throughout.