Indian Law Research

SUPREME COURT OF INDIA

Gaurav Nagpal v. Sumedha Nagpal

Decision date:

19 November 2008 · Civil Appeal No. 5099 of 2007

Explain child welfare and the role of the child's wishes in custody decisions.

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Official source

Draft summary

AI-assisted historical explanation. Independently checked against the source by an AI reviewer. Not reviewed by a lawyer. This historical summary does not certify the current legal position.

In one sentence

The child’s welfare governs custody, rather than a parent’s asserted entitlement alone.

Question decided

What considerations control a custody decision between parents?

Key holdings

Outcome

The custody appeal was dismissed with modified visitation arrangements; the connected contempt finding stood, with the sentence reduced to time already undergone.

Source PDF pages: 22, 23, 24, 25, 26, 27, 28, 29.

Plain-English explanation

Custody is not awarded as a prize to one parent or a punishment to the other. The Court treated the child’s welfare as the central consideration, looking beyond formal guardianship rights or a comparison of income. Stability, care, development and the overall circumstances must be assessed together. The judgment also considered conduct in the litigation and a connected contempt matter, whose disposition should not be confused with the custody ruling. The Court also modified the visitation arrangements while maintaining the custody outcome. It does not establish that mothers or fathers must always win. Nor does it make a child’s wishes the sole factor regardless of age and understanding. The principle is an individualised inquiry into welfare. Any application to a current family dispute requires up-to-date facts, without unnecessary publication of a child’s identifying details.

Relevant law

Opinions

Two-judge bench; Justice Arijit Pasayat authored the judgment.

Research notes and limits

Avoid gender-based automatic custody claims and unnecessary child-identifying detail; assess later welfare developments separately.

Judgment - source material

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5099 OF 2007
Gaurav Nagpal …Appellant
Versus
Sumedha Nagpal ….Respondent 
(With Criminal Appeal NO. 491 of 2006)
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned Single Judge
of the Punjab and Haryana High Court dismissing the appeal filed by the
appellant.  Learned  District  Judge, Gurgaon, had  allowed  the  application
filed by the respondent-wife under Section 6 of the Hindu Minority and

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Guardianship Act, 1956 (in short the ’Act’) alongwith Section 25 of the
Guardians and Wards Act, 1890 (in short ‘Guardian Act’).  
2. Matrimonial discords are on the rise at an alarming rate. The sanctity
of marriages is under cloud, which in a great way affects the society at
large.  Individuals can in no way be segregated from the society to which
they belong. The cultural heritage of a country is greatly influenced by a
pattern of behaviour of individuals and more so in matters of matrimony.
Home can be a wonderful place to live. But continuous fights between the
partners of a marriage disturb the atmosphere at home and create havoc on
the members of a family. One does not need a mansion to lead a happy
marital home.  The foundation of a happy home is love, sharing of joys and
sorrows,  and  not  in  that  sense  bricks  and  concrete.   There  should  be
cementing of hearts and not cementing of floors and walls.  Life is a series
of awakening.  The happiness which brings enduring worth to life is not the
superficial happiness that is dependent on circumstances. Ultimately, in the
fight between the partners, the victims more often than not are the children.
It is unfortunate that in their fight more often on account of egoism the
children  suffer,  more  particularly  when  the  child  is  a  girl.  It  is  not
uncommon to see that at the time of negotiation of marriage, the boy’s
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parents shy away because the girl is from a broken family and/or the parents
are divorced.  The child has practically no role in breaking of the marriage,
but he or she suffers. The marital discord sometimes reaches a stage where
the parties are unmindful of what psychological, mental and physical impact
it has on children.  It is worse when there is a single child, be it a boy or a
girl. The case at hand is a classic example where the child has become the
focus of controversy.  Bitter legal fights have been fought and the corridors
of several courts including the Supreme Court have been travelled by the
parties. Efforts have been made unsuccessfully to bring about conciliation
between the parties. The best way to make children good said a learned
author is to make them happy. 
3. A  brief  reference  to  the  factual  aspects  leaving  out  the  maize  of
unnecessary facts would suffice. 
The  parties  got  married  on  14.10.1996  and  the  child  from  their
wedlock was born on 15.11.1997. According to the appellant, respondent
abandoned the child on 8.8.1999 but she filed a Habeas Corpus Petition
before the Delhi High Court on 25.8.1999. The High Court dismissed the
petition on the ground of territorial jurisdiction.  Respondent filed a Special
Leave Petition  against the  High Court’s order dated 14.1.2000 and also
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filed a Writ Petition under Article 32 of the Constitution of India, 1950 (in
short the ‘Constitution’). This Court permitted interim custody of the 20
months old child with the appellant.  The respondent filed a maintenance
petition before the Delhi High Court and also a petition for guardianship
before  a learned  Additional  District  Judge,  Jhajjar.  The  same was  later
withdrawn  and  the  petition  was  filed  in  the  District  Court,  Gurgaon.
Appellant filed his reply opposing the application on the ground that the
respondent had deserted the child. By order dated 2.5.2002, learned Civil
Judge  dismissed  the  application  for  interim  custody  holding  that  any
disturbance by changing the custody of the child would traumatize him and
shall not be conducive to the welfare of the child  and it would affect the
mental balance of the child who had developed love and affection for his
father  and  his  family  members.  A  Revision  Petition  was  filed  by  the
respondent before the High Court.  The High Court granted the visitation
rights  to  the  respondent  by  order  30.9.2002  but  continued  the  interim
custody with the appellant.  The visitation rights fixed by the Court were in
the following terms:
(a) 9 a.m. to 5 p.m. on every last Saturday of the month.
(b) For a week in the aforesaid manner in summer vacations.
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(c) One day in Dussehra holidays (9 a.m. to 5 p.m.
(d) One day in Diwali Holidays (9 a.m. to 5 p.m.).
A contempt petition was filed for violation of the terms by the appellant.
The learned District Judge, Gurgaon allowed the petition of the respondent
and granted custody of the child to the respondent.  Appellant preferred an
appeal before the High Court against the order dated 6.1.2007. The High
Court passed an interim order staying the order of custody to the respondent
but continued the order with respect to visitation rights. By order dated
13.7.2007  the  appeal  filed  by the  appellant  was  dismissed.  Though  the
initial order of the High Court was stayed, subsequently by order dated
29.10.2007 the visitation rights were continued. 
4. According to the appellant, the order of the High Court is clearly
wrong  on  several  counts.  The  order  passed  by  the  High  Court  dated
9.3.2005  convicting  the  appellant  for  contempt  of  court  has  also  been
assailed in Criminal Appeal No.491 of 2006.  The Trial Court came to hold
that since the child had remained with the appellant for a period of 7 years,
he appears to have made every possible effort to obtain the custody of a
minor. The learned District Judge took note of the fact that taking of the
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child from his  father’s custody may adversely affect the sentiments and
upbringing  of  the  child,  but  at  the  same  time  the  child  should  not  be
deprived the mother’s home. 
5. Stand of the appellant before the High Court was that the court below
had not held that he suffers from any disability in his role as a father and,
therefore, there was no comprehensive reason for the Court to direct custody
of the child to be entrusted to the respondent.  The fact that the respondent
was the mother cannot be the sole basis for allowing the petition. While
considering the prayer for the custody of the child, several factors including
the relationship between the parties and the minor are secondary.  It was
submitted that the minor was abandoned when he was about one year and
nine months old. Thereafter, in the garb of seeking custody several rounds
of litigation were unleashed. 
6. With reference to Section 6 of the Act it was submitted that the father
was the legal guardian and the welfare of the minor child lies with the
appellant. He has a large income and resides in a joint family where the
minor is taken care of by the appellant, his mother, brother and brother’s
wife and his three nephews.  The warmth of the joint family has led to an all
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round  development  of  the  child  and  by  taking  him  away  from  those
surroundings can deprive him of love and affection. The appellant lives in a
posh locality and the house is built on nearly 3000 sq. yards whereas the
respondent resides with her parents in a two-bed room flat.  Apart from that
the appellant has a good educational background and since the child has
been residing for the last more than seven years with him, the courts should
not have directed handing over custody to the respondent.        
7. It was further pointed out that the primary focus being the welfare of
the child, the respondent should have brought on record as to how with her
meagre income she would be able to provide good education to the child. It
was pointed out that the child is afraid of his mother and wrenching him
from the custody of the father would lead to irreparable mental trauma.  
8. So far as the contempt proceedings were concerned it was submitted
that the appellant  is not  a criminal and though certain  cases  have  been
lodged against him they are related to some technical violations. 
9. The respondent’s stand on the other hand was that the appellant had
shifted his residence to Bahadurgarh by deception and fraud. From there the
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child was snatched from her custody on 1.8.1999. Since that date she has
approached various courts to seek custody of the child and for redressal of
her grievances.  The respondent got order relating to interim custody. For
failure to  comply with  the  orders  of interim custody, the appellant  was
convicted by the High Court and sentenced to one month’s imprisonment
and though the order of sentence has been stayed, the order of conviction
still continues to be in force. The appellant’s conduct in disobeying the
orders passed by the courts discloses that he has no respect or any regard for
the rule of law. It was further submitted that the child’s welfare cannot be
weighed in terms of money, facilities, area of a house or the financial might
of either the father or the mother. It was pointed out that  respondent had no
option but to reside with her parents  and is a teacher in Salwan Public
School. Merely because she was residing with the parents cannot disqualify
her from looking after her child. She may not be as financially sound as the
appellant, but that alone cannot disentitle her from the custody of the child.
She has stated that she was drawing a salary of Rs.13,000/-p.m. (which is
likely  to  be  substantially  increased)  and  was  receiving  Rs.25,000/-  as
maintenance pursuant to the order passed by the Delhi High Court and she
can look after  the financial needs for educating the child. She resides in
Gulabi  Bagh  which  is  well  located  and  surrounded  and  there  is  a park
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nearby. The colony has 8-10 parks and it is a better location where the child
can be well developed.  Therefore, it cannot be said that the respondent
resides in an area which is unsuitable to the minor child. 
10. It is also pointed out that the appellant has no fixed residence. He
shifted from Delhi to  Bahadurgarh  and then Gurgaon and back to Delhi in
a house in Sainik farm where the appellant claims to reside.  Same is owned
by his brother. It has been a deliberate attempt to poison the mind of the
child.  Negative  facts  have  been  fed  into  the  child’s  mind  against  the
respondent. It was further submitted that if sufficient time is given the child
would overcome any tutored prejudice.  Though, there was a claim that the
relatives would provide  healthy environment to the child, none of them
stepped into the witness box and affidavits filed much later cannot be a
substitute for the evidence in Court.  The High Court took note of Section
13 of the Act which is the foundation for the custody of the child. The
welfare  of  the  minor  is  of  paramount  consideration.   The  High  Court
looking into the materials placed observed as follows:
“In view of the facts, noticed herein before, the question that
exercises this Court’s mind is should the child be permitted to
stay with a father, who inculcates fear and apprehension in the
mind of minor,  against  his mother and  thwarts  court  orders
with  impunity.  The  answer  to  the  above  questions,  in  my
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opinion,  must be in the negative. The appellant, cannot wish
away his role, in the minor harboring such an irrational fear
towards the mother. I am conscious of the fact that directing the
custody of the child to the respondent, may result in a degree of
trauma. However, the daily trauma the child appears to undergo
while being tutored against his mother would be far in excess
of  the  trauma  likely  to  be  faced  while  entrusting  to  the
respondent. The minor child must be allowed to grow up with a
healthy  regard  for  both  parents.   A parent  in  this  case, the
appellant,  who  poisons  the  minor’s  mind  against  the  other
parent cannot possibly be stated to act for the welfare of the
minor.”
 
11. It is submitted that the  High Court  was not oblivious of the financial
status  of  the  respondent.  The  High  Court  also  found  that  large  area  of
accommodation and financial affluence cannot be a determinative factor.
Therefore, the High Court did not find any scope for interference with the
order of the court below. 
12. In support of the appeal, learned counsel for the appellant re-iterated
the stand taken before the High Court. It was additionally submitted that the
child’s reluctance to go with the mother should have been duly considered
by the High Court. Apparently, that has not been done. 
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13. Strong reliance is placed on a decision of this Court in  Mausami
Moitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634) wherein this Court
on 12th May, 2008 dismissed the mother’s appeal, according to appellant, on
identical facts. 
14. The  Respondent,  who  appeared  in  person,  highlighted  the  stands
taken by her before the learned District Judge and the High Court.  The
main plank of appellant’s argument is to continue custody with the father.
The  appellant  has  managed  to  retain  the  custody  by flouting  the  order
passed by this Court. It is pointed out by the respondent that for flouting the
orders of the Court the appellant has been convicted for contempt of court
which is the subject matter of challenge in criminal appeal. It was not the
first instance when the appellant flouted the order.  It is pointed out that the
factual scenario in Mausami Moitra’s  case (supra) was entirely different. In
that case,  courts below had analysed the material to conclude that it would
be desirable to give custody to the father. The factual scenario is entirely
different here.  
15. It is to be noticed as done at the threshold that in the present dispute
the child has become the victim.  
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16. It is pointed out by the respondent that she was not aware that the
appellant was a divorcee. The first wife was ill treated by the appellant and
his  relatives  on  account  of  alleged  meagre  dowry.  She  was  eventually
ousted  from the  matrimonial home alongwith  a minor  child.  Since the
appellant  demanded  custody of the child and threatened the respondent,
information  was  lodged  at  the  Police  Station.  On  1.8.1999  while  the
respondent was attending to household chores, the appellant whisked away
their  minor  child  and  sent  him  to  some  unknown  place  at  Delhi.  The
respondent was bundled into a car and kept in illegal confinement at the
house of one Sh. Bal Kishan Dang from where she escaped on 8.8.1999. She
sent telegrams to various authorities and a formal complaint was lodged
with the Police Station, Sarai Rohilla alleging wrongful confinement and
kidnapping of the child. In the meanwhile, the respondent’s father lodged a
complaint with the police at Bahadurgarh. The appellant was arrested and
produced before the  Court at Bahadurgarh.  An application was filed before
the Sub-Divisional Judicial Magistrate, Bahadurgarh, requesting the court to
hold an inquiry, as to the whereabouts of the minor child. The Magistrate
passed an order directing the appellant to produce the child on the next date
of hearing. However, as the respondent could not reach the court in time, the
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Magistrate  granted  bail  to  the  appellant  and  declined  the  prayer  for
production  of  the  minor  child.  Thereafter,  the  respondent,  filed  an
application for issuance of a writ in the nature of Habeas Corpus before the
High Court  at Delhi. Despite issuance  of notice, the  appellant  failed  to
produce the child. Eventually on 11.1.2000, the petition was dismissed for
want of territorial jurisdiction. The respondent, thereafter, filed a Special
Leave Petition before this Court, as also a writ petition under Article 32 of
the  Constitution.  Both  these  petitions  were  dismissed  by  this  Court,
directing the respondent, to avail her remedy before the Guardian Court.
The  respondent,  thereafter  filed  a  petition  under  Section  6  of  the  Act,
praying for the custody of the minor child. The respondent, prayed before
the Trial Court that as she was the mother of a minor child and as she did
not suffer from any disability, the appellant be directed to hand over the
custody of the minor child. It was averred in the petition that though the
appellant claimed to be the owner of various companies, he had committed
various frauds.
  
17. The appellant played fraud with the respondent by concealing the fact
that he was earlier married to one Alka Nagpal and  his marriage broke  as
he is supposed to have similarly tortured and harassed his wife  as was made
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out to the respondent.  It is the respondent’s case that as she was unable to
bear the physical and mental agony, Alka Nagpal committed suicide within
six months of her marriage. It is also pointed out that the criminal cases
involving offences punishable under Sections 498A, 406, 323, 506, 343 and
109 IPC are pending in the CBI Court, Patiala against the appellant and  his
family members.  It is also pointed out that the child was shifted from one
school to another at various places in Haryana and Delhi.  
18. It was pointed out that the conduct of the appellant was noted by the
Local Commissioner of Police in his report on 10.10.2003 who committed
repeated defaults in bringing the child on various dates.  The High Court
noted that fact and came to a conclusion that the appellant had willfully
disobeyed the orders of  this Court and had poisoned the mind of the child
against the mother. It was further noted that the child could only meet the
mother with the help of a duty Magistrate.  
19. We shall first deal with law relating to custody in various countries.
English Law
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20. In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at
page 217 it has been stated;
“Where in any proceedings before any court the custody or
upbringing of a minor is in question, then, in deciding that
question, the court must regard the minor's welfare as the
first  and  paramount  consideration, and  may  not  take  into
consideration whether from any other point of view the father's
claim in respect of that custody or upbringing is superior to that
of the mother, or the mother's claim is superior to that of the
father."
(emphasis supplied)
It has also been stated that if the minor is of any age to exercise a
choice, the court will take his wishes into consideration. (para 534; page
229).
21. Sometimes, a writ of habeas corpus is sought for custody of a minor
child. In such cases also, the paramount consideration which is required to
be kept in view by a writ-Court is ‘welfare of the child’.
 
22. In Habeas Corpus, Vol. I, page 581, Bailey states;
"The reputation of the father may be as stainless as crystal; he
may not be afflicted with the slightest mental, moral or physical
disqualifications from superintending the general welfare of the
infant; the mother may have been separated from him without
the shadow of a pretence of justification; and yet the interests
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of the child may imperatively demand the denial of the father's
right and its continuance with the mother. The tender age and
precarious state of its health make the vigilance of the mother
indispensable to its proper care; for, not doubting that paternal
anxiety would seek for and obtain the best substitute which
could be procured yet every instinct of humanity unerringly
proclaims that no substitute can supply the place of her whose
watchfulness over the sleeping cradle, or waking moments of
her offspring, is prompted by deeper and holier feeling than the
most  liberal  allowance  of  nurses'  wages  could  possibly
stimulate."
23. It is further observed that an incidental aspect, which has a bearing on
the question, may also be adverted to. In determining whether it will be for
the best interests of a child to grant its custody to the father or mother, the
Court may properly consult the child, if it has sufficient judgment.
24. In  Mc Grath, Re,  (1893) 1 Ch 143 : 62 LJ Ch 208, Lindley, L.J.
observed;
 The dominant matter for the consideration of the Court is
the welfare of the child.   But the welfare of the child is not
to be measured by money only nor merely physical comfort.
The word ‘welfare’ must be taken in its widest sense. The
moral or religious welfare of the child must be considered as
well as its physical well-being.  Nor can the tie of affection
be disregarded.
  (emphasis supplied)
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American Law
25. Law  in  the  United  States  is  also  not  different.  In  American
Jurisprudence, Second Edition, Vol. 39; para 31; page 34, it is stated;
"As a rule, in the selection of a guardian of a minor, the best
interest of the child is the paramount consideration, to which
even the rights of parents must sometimes yield”.
(emphasis supplied)
In para 148; pp.280-81; it is stated;
“Generally, where the writ of habeas corpus is prosecuted for
the purpose of determining the right to custody of a child, the
controversy does not involve the question of personal freedom,
because an infant is presumed to be in the custody of someone
until it attains its majority. The Court, in passing on the writ in
a child custody case, deals with a matter of an equitable nature,
it is not bound by any mere legal right of parent or guardian,
but is to give his or her claim to the custody of the child due
weight  as  a  claim  founded  on  human  nature  and  generally
equitable and just. Therefore, these cases are decided, not on
the legal right of the petitioner to be relieved from unlawful
imprisonment or detention, as in the case of an adult, but on the
Court's  view  of  the  best  interests  of  those  whose  welfare
requires that they be in custody of one person or another; and
hence, a court is not bound to deliver a child into the custody of
any claimant or of any person, but should, in the exercise of a
sound discretion, after careful consideration of the facts, leave
it in such custody as its welfare at the time appears to require.
In short, the child's welfare is the supreme  consideration,
irrespective  of  the  rights  and  wrongs  of  its  contending
parents,  although  the  natural  rights  of  the  parents  are
entitled to consideration.
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An application by a parent, through the medium of a habeas
corpus proceeding, for custody of a child is addressed to the
discretion of the court, and custody may be withheld from the
parent where it is made clearly to appear that by reason of
unfitness  for  the  trust  or  of  other  sufficient  causes  the
permanent  interests  of  the  child  would  be  sacrificed  by  a
change of custody.  In determining whether it will be for the
best interest of a child to award its custody to the father or
mother, the Court may properly consult the child, if it has
sufficient judgment”.
  (emphasis supplied)
26. In Howarth v. Northcott, 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd
758; it was stated;
“In habeas corpus proceedings to determine child custody, the
jurisdiction exercised by the Court rests in such cases on its
inherent equitable powers and exerts the force of the State, as
parens patriae, for the protection of its infant ward, and the
very nature and scope of the inquiry and the result sought to be
accomplished call for the exercise of the jurisdiction of a court
of equity”.
It was further observed;
"The employment of the forms of habeas  corpus  in a child
custody case is not for the purpose of testing the legality of a
confinement  or  restraint  as  contemplated  by  the  ancient
common law writ, or by statute, but the primary purpose is to
furnish a means by which the court, in the exercise of its
judicial discretion, may determine what is best for the welfare
of the child, and the decision is reached by a consideration of
the  equities  involved  in  the  welfare  of  the  child,  against
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which the legal rights of no one, including the parents, are
allowed to militate”.        
                   (emphasis supplied)
27. It was also indicated that ordinarily, the basis for issuance of a writ of
habeas corpus is an illegal detention; but in the case of such a writ sued out
for the detention of a child, the law is concerned not so much with the
illegality of the detention as with the welfare of the child.
28. The legal position in India follows the above doctrine.  There are
various statutes which give legislative recognition to these well-established
principles.  It would be appropriate if we examine some of the statutes
dealing with the situation.  Guardians Act, consolidates and amends the law
relating to guardians and wards.  Section 4 of the said Act defines “minor”
as a person who has not attained the age of majority. “Guardian” means a
person having the care of the person of a minor or of his property, or of both
his person and property. “Ward” is defined as a minor for whose person or
property  or  both,  there  is  a  guardian.  Chapter  II  (Sections  5  to  19  of
Guardians Act) relates to appointment and declaration of guardians. Section
7 thereof deals with ‘power of the Court to make order as to guardianship’
and reads as under:
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7. Power of the Court to make order as to guardianship.-(1)
Where the Court is satisfied that it is for the welfare of a minor
that an order should be made—
(a) appointing a guardian of his   person or property, or both, or
(b) declaring a person to be such a guardian,
the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any
guardian  who  has  not  been  appointed  by  will  or  other
instrument or appointed or declared by the Court.
(3)  Where  a  guardian  has  been  appointed  by  will  or  other
instrument  or appointed  or  declared  by  the  Court,  an  order
under this section appointing or declaring another person to be
guardian in his stead shall not be made until the powers of the
guardian appointed or declared as aforesaid have ceased under
the provisions of this Act.
29. Section 8 of the Guardians Act enumerates persons entitled to apply
for  an  order  as  to  guardianship.  Section  9  empowers  the  Court  having
jurisdiction to entertain an application for guardianship. Sections 10 to 16
deal with procedure and powers of Court. Section 17 is another material
provision and may be reproduced;
“17. Matters to be considered by the Court in appointing
guardian.-(1)  In  appointing  or  declaring  the  guardian  of  a
minor, the Court shall, subject to the provisions of this section,
be  guided  by what,  consistently  with  the  law  to  which  the
minor is subject, appears in the circumstances to be for the
welfare of the minor.
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(2) In considering what will be for the welfare of the minor, the
Court  shall  have  regard  to the age,  sex  and  religion  of the
minor, the character and capacity of the proposed guardian and
his  nearness  of  kin  to  the  minor,  the  wishes,  if  any,  of  a
deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3)  If  the  minor  is  old  enough  to  form  an  intelligent
preference, the Court may consider that preference.
* * * * *
(5) The Court shall not appoint or declare any person to be a
guardian against his will.
  (emphasis supplied)
30. Section 19 prohibits the Court from appointing guardians in certain
cases.
Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities
of guardians. 
31. The Act is another equally important statute relating to minority and
guardianship among Hindus.  Section 4 defines “minor” as a person who
has not completed the age of eighteen years.  “Guardian” means a person
having the care of the person of a minor or of his property or of both his
persons and property, and inter alia includes a natural guardian.  Section 2
of the Act declares that the provisions of the Act shall be in addition to, and
not in derogation of 1890 Act. 
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32. Section 6 enacts as to who can be said to be a natural guardian.  It
reads thus;
6.  Natural  guardians  of  a  Hindu  Minor.—The  natural
guardians of a Hindu minor, in respect of the minor’s person as
well as in respect of the minor’s property (excluding his or her
undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father,
and after him, the mother; provided that the custody of a minor
who has not completed the age of five years shall ordinarily be
with the mother;
(b) in the case of an illegitimate boy or an illegitimate
unmarried girl—the mother, and after her, the father.
(c) in the case of a married girl—the husband:
Provided that no person shall be entitled to act as the
natural guardian of a minor under the provisions of this section
—
(a) if he has ceased to be a Hindu, or
(b) if  he  has  completely  and  finally  renounced  the  world
becoming  a  hermit  (vanaprastha)  or  an  ascetic  (yati  or
sanyasi). 
Explanation.—In  this  section,  the  expressions  “father”
and “mother” do not include a step-father and a step-
mother.
 
33. Section  8  enumerates  powers  of  natural  guardian.   Section  13  is
extremely important provision and deals with welfare of a minor.  The same
may be quoted in extenso; 
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13. Welfare of minor to be paramount consideration.
(1)  In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No, person shall be entitled to the guardianship by virtue of
the  provisions  of  this  Act  or  of  any  law  relating  to
guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the
welfare of the minor.  
(emphasis supplied)
34. Section 26 of the Hindu Marriage Act, 1955 provides for custody of
children and declares that in any proceeding under the said Act, the Court
could make, from time to time, such interim orders as it might deem just and
proper  with  respect  to  custody,  maintenance  and  education  of  minor
children, consistently with their wishes, wherever possible.
35. The principles in relation to the custody of a minor child are well
settled. In determining the question as to who should be given custody of a
minor child, the paramount consideration is the ‘welfare of the child’ and
not rights of the parents under a statute for the time being in force.
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36. The aforesaid statutory provisions came up for consideration before
Courts in India in several cases.  Let us deal with few decisions wherein the
courts have applied the principles  relating to grant of custody of minor
children by taking into account their interest and well-being as paramount
consideration.
37. In Saraswathibai Shripad v. Shripad Vasanji,  ILR 1941 Bom 455 :
AIR 1941 Bom 103; the High Court of Bombay stated;
“It is not the welfare of the father, nor the welfare of the
mother that is the paramount consideration for the Court.  It is
the welfare of the minor and the minor alone which is the
paramount consideration.”
(emphasis supplied)
38. In  Rosy Jacob v. Jacob A. Chakramakkal,  (1973) 1 SCC 840, this
Court  held  that object  and  purpose  of 1890 Act is not  merely physical
custody of the  minor  but due  protection  of the rights  of ward’s  health,
maintenance and education. The power and duty of the Court under the Act
is the welfare of minor. In considering the question of welfare of minor, due
regard has of course to be given to the right of the father as natural guardian
but if the custody of the father cannot promote the welfare of the children,
he may be refused such guardianship. 
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39. Again, in  Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka,
(1982) 2 SCC 544, this Court reiterated that the only consideration of the
Court in deciding the question of custody of minor should be the welfare
and interest of the minor.  And it is the special duty and responsibility of the
Court.  Mature thinking is indeed necessary in such situation to decide what
will enure to the benefit and welfare of the child.
40. Merely  because  there  is  no  defect  in  his  personal  care  and  his
attachment for his children—which every normal parent has, he would not
be granted custody. Simply because the father loves his children and is not
shown  to  be  otherwise  undesirable  does  not  necessarily  lead  to  the
conclusion that the welfare of the children would be better promoted by
granting their custody to him.  Children are not mere chattels nor are they
toys for their parents. Absolute right of parents over the destinies and the
lives of their children, in the modern changed social conditions must yield
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
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requirements  of  welfare  of  the  minor  children  and  the  rights  of  their
respective parents over them.
41. In  Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu,  (1984) 3
SCC 698, this Court held that Section 6 of the Act constitutes father as a
natural guardian of a minor son.  But that provision cannot supersede the
paramount  consideration  as  to  what  is  conducive  to  the  welfare  of  the
minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1
SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC
6].
42. When the court is confronted with conflicting demands made by the
parents, each time it has to justify the demands. The Court  has not only to
look  at  the  issue  on  legalistic  basis,  in  such  matters  human  angles  are
relevant for deciding those issues. The court then does not give emphasis on
what the parties say, it has to exercise a jurisdiction which is aimed at the
welfare of the minor. As observed recently in  Mousami Moitra Ganguli’s
case  (supra),  the  Court  has  to  due  weightage  to  the  child’s  ordinary
contentment, health, education, intellectual  development and  favourable
surroundings  but over and above physical comforts, the moral and ethical
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values have also to be noted. They are equal if not more important than the
others. 
43. The word ‘welfare’ used in Section 13 of the Act has to be construed
literally and  must  be  taken  in  its  widest  sense.   The  moral  and  ethical
welfare of the child must also weigh with the Court as well as its physical
well being.  Though the provisions of the special statutes which govern the
rights of the parents or guardians may be taken into consideration, there is
nothing which can stand in the way of the Court exercising its parens patriae
jurisdiction arising in such cases.
44. The trump card in appellants’ argument is that the child is living since
long with the father.  The argument is attractive. But the same overlooks a
very significant factor.  By flouting various orders, leading even to initiation
of contempt proceedings, the appellant has managed to keep custody of the
child.  He can not be a beneficiary of his own wrongs.  The High Court has
referred to these aspects in detail in the impugned judgments. 
45. The conclusions arrived at and reasons indicated by the High Court to
grant custody to the mother does not in our view suffer from any infirmity.
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It is true that taking the child out of the father’s custody may cause some
problems, but  that is bound to be neutralized.
46. Learned counsel for the appellant submitted that the child’s education
is  of paramount importance  and  the father is  spending  good amount  of
money for providing him excellent education, and  the mother does not have
the financial affluence as the appellant  claims to have.  But that can be
taken care of if father is asked to pay the educational expenses of the child
in addition to the maintenance being paid to the respondent.  But  at the
same time it cannot be overlooked that the father needs to have visitation
rights of the child.  
47. In partial modification of the order passed by the District Judge and
the High Court, we direct that the visitation rights shall be in the following
terms:
(1) During long holidays/vacations covering more than two
weeks the child will be allowed to be in the company of
the father for a period of seven days.
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(2) The  period  shall  be  fixed  by  the  father  after  due
intimation to the mother who shall permit the child to go
with the father for the aforesaid period.
(3) For twice every month preferably on Saturday or Sunday
or a festival day, mother shall allow the child to visit the
father from morning to evening.  Father shall take the
child and  leave him back at the mother’s place on such
days.
 
48. The  appeal  is  dismissed  subject  to  aforesaid  modifications.  Costs
fixed at Rs.25,000/-.
CRIMINAL APPEAL NO. 491 OF 2006
49. Though we find that the order of the High Court does not suffer from
any infirmity but taking into account the fact that we have dismissed the
connected Civil appeal relating to the custody of the child, while upholding
the  finding  of  guilt  for  disobeying  the  Court’s  order  and  committing
contempt of Court, we restrict  the sentence to the period already undergone.
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50. Before saying omega, we propose to make some general observations.
It is a disturbing phenomenon that large number of cases are flooding the
courts relating to divorce or judicial separation. An apprehension is gaining
ground that the provisions relating to divorce in the Hindu Marriage Act,
1950  (in short the ‘Marriage Act’) has led to such a situation. In other
words, the feeling is that the statute is facilitating breaking of homes rather
than saving them. This may be too wide a view because actions are suspect.
But that does not make the section invalid.  Actions may be bad, but not the
Section. The provisions relating to divorce categorise situations in which a
decree for divorce  can be sought for. Merely because such a course is
available to be adopted, should not normally provide incentive to persons to
seek divorce, unless the marriage has irretrievably broken. Effort should be
to bring about conciliation to bridge the communication gap which lead to
such undesirable proceedings.  People rushing to courts for breaking up of
marriage should come as a last resort, and unless it has an inevitable result,
courts should try to bring about conciliation. The emphasis should be on
saving marriage and not breaking it. As noted above, this is more important
in cases where the children bear the brunt of dissolution of marriage.  
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50. One must not lose faith in humanity.  It is an ocean; if a few drops of
the ocean are dirty, the ocean does not become dirty.  If nothing ever went
wrong in one’s life, he or she would never have a chance to grow stronger.
One should never forget  that  today well lived  makes  every yesterday a
dream of happiness  and  tomorrow a vision of hope.  Marital  happiness
depends upon mutual trust, respect and understanding.  A home should not
be  an  arena  for  ego  clashes  and  misunderstandings.   There  should  be
physical  and  mental  union.   Marriage  is  something,  Ibsen  said  in  “The
League of Youth” you have to give your whole mind to.  If marriages are
made  in  Heaven  as  Tennyson  said  in  Ayloner’s  Field,  why  make
matrimonial home hell is a big question.
  
51. The appeals are dismissed subject to the aforesaid modifications. 
…………………………..J.
(Dr. ARIJIT PASAYAT)
…………………………..J.
(G.S. SINGHVI)
New Delhi,
November 19, 2008
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