SHEOLI HATI versus SOMNATH DAS on 11 July 2019

[2019] 9 S.C.R. 212

SUPREME COURT REPORTS[2019] 9 S.C.R. 212

[2019] 9 S.C.R.

SHEOLI HATI

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v.

SOMNATH DAS

(Civil Appeal Nos. 5388-5389 of 2019)

BJULY 11, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Guardian and Wards Act, 1890:

ss.7 and 12 – Application under – By father (respondent) –CSeeking custody of minor girl-child – Alleging that mother(appellant) was obstructing his visiting rights granted by the Court,pursuant to divorce between the parties – Later the respondent gaveup the claim of custody and sought direction to admit the child inany reputed boarding school in India at his expenses – Family Courtdirected that custody of the child would be with mother alongwithDvisiting rights of father and that the child would be admitted toboarding school after attaining the age of 12 years i.e. foracademic session 2019-2020 – Cross-appeals by the parties – HighCourt by interim order dated 26.4.2018, directed the child to beadmitted in a reputed residential school at Ooty for the sessionE2018-2019 – Pursuant to direction of the High Court, the child wasadmitted to the residential school at Ooty – Appeal to SupremeCourt – Held: While taking a decision regarding custody or issuespertaining to a child, welfare of the child is of paramountconsideration – The courts in exercise of parens patriae jurisdictionhave to consider the welfare of the child as of paramountFimportance – It is evident from the record that father’s intentionhad always been that the child got best education at a neutralenvironment – The Court has to take extra caution to ensure thatthe child is kept away from negative influences – What is in the bestinterest of the child depends on the facts and circumstances of eachGcase – It would be appropriate that the High Court finally decidesthe appeals after taking into consideration subsequent materials.

Disposing of the appeals, the Court

HELD: 1. When the child has to go in the environment,where there is marital discord between her parents affecting theH

peace of mind of all including the parents and children, child suffersphysical and mental distress. The ill consequences of the discordbetween mother and father effect the child in her normalupbringing and is a negative factor on child’s personality andupbringing. [Para 16] [224-E-F]

Vivek Singh v. Romani Singh (2017) 3 SCC 231– relied on.

2. While taking a decision regarding custody or other issuespertaining to a child, welfare of the child is of paramountconsideration. Every child has right to proper health and educationand it is the primary duty of the parents to ensure that child getsproper education. The Courts in exercise of parens patriaejurisdiction have to decide such delicate question. It has toconsider the welfare of the child as of paramount importancetaking into consideration other aspects of the matter includingthe rights of parents also. What is in the interest of the childdepends on the facts and circumstances of each case and has tobe decided on its own merits without adhering to any fixed formulaor rule. [Paras 18, 19 and 22] [225-E; 225-F-G; 230-F]

Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 :[2008] 16 SCR 396 ; Thrity Hoshie Dolikuka v.Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544:[1983] 1 SCR 49; Nutan Gautam v. Prakash Gautam(2019) 4 SCC 734 – relied on.

3. In the present case, it is the respondent-father, who isbearing all expenses of the child in the boarding school at Ooty,which are more than Rs.10 lakhs p.a. In addition to the aboveexpenses of the school, the respondent also offered to bearexpenses of flight charges and stay of the appellant-mother whenshe visits the child at Ooty from Jamshedpur. From the materialon record, the Court is satisfied that the respondent’s intentionhas always been that the child should get best education at aneutral environment, which may help in developing herpersonality. The appellant has right from beginning opposingthe prayer of the respondent to send the child in the boardingschool and tried to find fault with the school at Ooty. In thecircumstance in which the child is there, the Court has to take A

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[2019] 9 S.C.R.

Aextra caution and precaution to ensure that the child is kept awayfrom negative influences. Even the Family Court has directedfor admitting the child in boarding school but from AcademicSession 2019-2020. The High Court initially directed that thechild to be admitted in Sacred Heart Convent School, Jamshedpurand after receiving a report from the said School, the High CourtBdirected for admission of the child in Good Shepherd InternationalSchool, Ooty for the Academic Session 2018-2019, which orderis under challenge in these appeals. [Paras 13, 14] [223-E-H;224-A-B]

4. The order dated 26.04.2018 passed by the High Court,Cimpugned in the present appeals, has been given effect to andboth the appeals being still pending in the High Court awaitingfinal decision, it would be appropriate that the High Court mayfinally decide the appeals after hearing the parties. There is nojustification in interfering with this order at this stage.D[Para 15] [224-C]

5. The High Court, while deciding the appeals finally, shouldalso take into consideration subsequent materials which may bebrought before it by the parties including the progress report ofthe child from Good Shepherd International School, Ooty. It isEalso open for the High Court to take decision on the medicalissues and if necessary to obtain medical reports as may berequired. The High Court during hearing of the appeals hadalready interacted with the child on many occasions and it is forthe High Court to take a decision with regard to interacting withthe child. [Para 22] [230-F-H]F

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5388-5389 of 2019.H

From the Judgment and Order dated 26.04.2018 of the HighCourt of Jharkhand, at Ranchi in F.A. No. 59 of 2016 with F.A. No. 68of 2016

Prashant Bhushan, Sudeep Dey, Navdeep Jain, NikileshRamachandran, Advs. for the Appellant.

Ashok Panigrahi, Anmol Tayal, S. Vinay Ratnakar, Advs. for theRespondent.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. The appellant aggrieved by the judgment dated 26.04.2018passed by a Division Bench of the High Court of Jharkhand at Ranchihas come up in these appeals. The impugned judgment of the High Courtwas passed in First Appeal No.59 of 2016 filed by the appellant and FirstAppeal No.68 of 2016 filed by the respondent both challenging the orderdated 31.03.2016 passed by the Principal Judge, Family Court,Jamshedpur in Guardianship Case No.11 of 2012 filed by the respondentunder Sections 7 and 12 of the Guardian and Wards Act, 1890.

3. The brief facts and circumstances giving rise to these appeals are:

3. The brief facts and circumstances giving rise to these appeals are:

3.1 The appellant and the respondent were married in the year2003. There has been matrimonial dispute between the partiessince the year 2006. A girl child was born to the appellant andthe respondent on 09.04.2007, named as Aditi. The appellantfiled complaint against the husband before various authorities,employer of the respondent as well as National Human RightsCommission. A petition for seeking restitution of conjugal rightsunder Section 9 of the Hindu Marriage Act, 1955 was filed bythe respondent at Bengaluru where the respondent was residing.In the year 2008, the appellant lodged FIR against the respondentunder Section 498A of the IPC being Case No.204 of 2008. Inthe year 2008, the respondent filed an application for seeking adecree of divorce before the Family Court, Bengaluru whichwas registered as Matrimonial Case No.3358 of 2008.

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A3.2 The respondent filed an application before the High Court ofJharkhand at Ranchi seeking anticipatory bail in connection withKadma PS Case No.204 of 2008 in which case parties werereferred to mediation and conciliation to amicably resolve theirissues. On 11.09.2009, the Principal Judge, Family Court atBengaluru granted ex parte decree of divorce dated 11.09.2009.BDuring the pendency of the Anticipatory Bail Application beingNo.518 of 2009, the parties amicably settled all their disputesbefore Jharkhand Legal Services Authority. A Settlement dated19.12.2009 between the parties was communicated to the HighCourt. As per the terms of the settlement, the respondent agreedCto pay an amount of Rs.5,00,000/- as permanent alimony to theappellant. Further, the respondent agreed to deposit a sum ofRs.5,00,000/- in the name of Aditi for her all time maintenance.The appellant further agreed not to challenge ex parte divorcedecree. The appellant also agreed to allow the respondent tomeet their child once in every two months starting from January,D2010. The High Court disposed of the matter in terms of thesettlement.

3.3 The respondent alleging obstruction by the appellant in hisvisiting rights filed an application seeking custody of the child,Aditi under Sections 7 and 12 of the Guardian and Wards Act,E1890 at Bengaluru. The said proceedings under Guardian andWards Act were transferred to Family Court at Jamshedpurunder order of this Court dated 27.03.2012. The appellant filedwritten statement in Guardianship Case No.11 of 2012. Therespondent made an amendment application before the FamilyFCourt, Jamshedpur praying for an alternative relief for additionof a prayer in his application in Guardianship Case, i.e., fordirecting the child to be admitted in any reputed residential/boarding school in India at the expenses of the respondent, whichamendment application was allowed by an order dated16.05.2013. The Principal Judge, Family Court by order datedG31.03.2016 decided the Guardianship Case No.11 of 2012. It isto be noted that in the Guardianship proceedings the respondenthas given up his claim of the custody of child and confined hiscase to alternative prayer, i.e., direction to admit the child in aboarding school. The Family Court, Jamshedpur in paragraphH41 of the judgment directed:

“41. Thus, in view of the discussions made above, I come to theconclusion that minor daughter of the petitioner and respondentAditi Bishaskha Das shall continue in the care, custody andguardianship of her mother till she reaches the age of 11 yearsand shall continue to pursue her education from Jamshedpur alongwith her mother. However, the petitioner shall have the visitationright as is continuing since before i.e. during the pendency of thecase. However, the petitioner shall be entitled to the custody ofthe child for half of each vacation of the school where Aditi is orshall be studying and for the first half of vacation Aditi shall be inthe care and custody of her father i.e. petitioner and for thesecond half of the vacation she shall be under the care and custodyof her mother. The vacations referred to above are the Summerand Winter vacations in every school. Further, Aditi upon attainingthe age of 12 years i.e. for the academic session 2019-2020 sheshall be sent to a boarding school of repute where she qualifiesand is able to get admission. The entire cost of such BoardingSchool shall be borne by the petitioner and once Aditi gets into theBoading School then the respondent shall have the right to visither daughter as permitted by the School calendar but at the costof the petitioner and the petitioner shall pay such cost which shallinclude the travelling air-fare and other expenses in advance. IssueNo.V is decided accordingly. The custody in course of vacationshall continue as before.”

3.4 The Family Court directed that Aditi shall continue in the custodyand guardianship of her mother till she reaches the age of 11years and continue to pursue her education from Jamshedpur.The respondent was allowed visitation right and also allowedcustody of the child for half of each vacation of the school.First half of the vacation be in the care and custody of herfather and second half be in the custody of the mother. TheFamily Court further directed that for the academic session2019-2020 she shall be sent to a boarding school of repute whereshe qualifies and is able to get admission.

3.5 Aggrieved by the judgment of the Family Court both the partieshave filed appeals in the High Court. The appellant filed FirstAppeal No.59 of 2016 and the respondent filed First AppealNo.68 of 2016. The High Court interacted with the child on ABCDE

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several occasions. The High Court in the aforesaid appealspassed an order dated 17.11.2016 proposing to the parties thatthe minor child be admitted in Sacred Heart Convent School,Jamshedpur which is a very good school for girls in Jamshedpur.On 28.11.2016, the High Court directed that Aditi be admittedin Sacred Heart Convent School, Jamshedpur. The High Courtalso increased the visiting hours of the respondent and alsopermitted the respondent to get the child registered for admissionin La Martiniere Girls School, Kolkata. Against the order dated28.11.2016, the appellant filed SLP(C)Nos.37915-37916 of 2016which were dismissed by this Court by order dated 23.12.2016.By the subsequent order dated 26.04.2018 which is impugnedin the present appeals, the High Court directed the child to beadmitted in Good Shepherd International School, Ooty in ClassIV which is a residential institution affiliated to ICSE for theSession 2018-2019, which commenced from 21.07.2018. Theseappeals were taken by this Court on 10.07.2018. In its orderdated 10.07.2018 following observations were made by thisCourt:

“After hearing the learned counsel for the parties yesterdayas well as today, we are of the opinion that there is no need tostay the directions of the High Court in the impugned orderwhereby the High Court has directed that the child AditiBisakha Das be admitted in Good Shephard InternationalSchool, Ooty in Class V where the respondent has alreadysecured admission for her. This arrangement, as per the HighCourt’s order, is made for the Academic Year 2018-19. Wealso find that the High Court has passed this order afterweighing and discussing all the alternatives and 2 pros andcons of the matter and has formed its opinion that it is one ofthe most suitable solutions.

We feel that once such an order is given on objectiveconsiderations, it is better that the child is admitted in the saidSchool in the current academic year in order to find out as tohow she is able to cope up with and studies in the said Schoolat Ooty and what kind of progress she is able to make onshifting her from the present atmosphere to a boarding School.”

3.6 In pursuance of the order of the High Court dated 26.04.2018,ultimately, the child, Aditi was admitted in Good ShephardInternational School, Ooty reluctantly by the appellant. Withregard to the visiting rights of the respondent orders were passedfor the winter vacation by this Court on 12.12.2018. Afterspending second half of the winter vacation with father thechild went to Jamshedpur to attend birthday of her mother on13.01.2019. After attending birthday she was to catch a flightfor Bengaluru from Ranchi. Father along with an Advocatewas to take the child. On 14.01.2019 at the Airport childcomplained to the CISF personnel that she did not want to goalong with father to Bengaluru. The CISF officer informed theconcerned Police Station and the lady Police personnelinteracted with the child. Although the appellant and her fatherwere telephonically informed but they did not come to take thechild and the child was ultimately lodged in a shelter home. TheChild Welfare Committee, Ranchi (Jharkhand) also interactedwith the child. This Court vide order dated 21.01.2019 directedfollowing:

“The child being student in a good school and her sessioncoming to close, we are of the view that first thing to be doneis to direct the Child Welfare Committee to send the child tothe school. Respondent/father will bear all expenses fortraveling of the child along with one woman companion whichmay be deputed by the Child Welfare Committee to take thechild and handover the child to the Principal of the School.This order shall be complied by the Child Welfare Committeewithin three days from the date of production of this order. Allother issues between the parties shall be taken caresubsequently. We further direct that report of the Child WelfareCommittee be submitted in a sealed cover before this Court.The Principal of the school also submit an interim report ofthe academic session in a sealed cover before this Court.Reports be submitted within two weeks. The school may alsosend detail report by the end of this academic session.

Accordingly, I.A. is disposed of.

List the matters after four weeks.”

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A3.7 After aforesaid order dated 21.01.2019, the child was handedover to the School to complete her session. Further, on21.02.2019, the report from Child Welfare Committee, Ranchi,Jharkhand and on 29.01.2019 and 02.02.2019 report from GoodShepherd International School, Ooty were received. By orderdated 03.05.2019 on the request of the mother she was permittedBto have the custody of the child during the entire vacation witheffect from 22.05.2019. Thereafter, the matter was heard on01.07.2019.

4. Learned counsel for the appellant submits that the child is notdoing well at Good Shepherd International School, Ooty and she hasCsuffered medical issues also. The appellant submits that proper medicalcare was not taken by the School. Learned counsel submits that theappellant has always contended that child shall be allowed to get hereducation at Jamshedpur where the mother is residing. An I.A.No.74433of 2019 has been filed by the appellant where the second prayer is that DAditi to be admitted in some reputed school for the Academic Session2019-2020 in Jamshedpur or alternatively Aditi be admitted in someboarding school near Jamshedpur. In the application, the appellant hasreferred to La-Martiniere Girls School, Kolkata and Loreto ConventEntally, Kolkata.

E5. Learned counsel for the appellant has also referred to medicalprescription dated 20.05.2019 of one Dr. Devi Prasad Rao, ChildSpecialist, Hospital Road, Ooty and one further prescription dated07.06.2019 of Aditi from Zila Mansik Swasthaya Karyakaram,Jamshedpur, East Singhbhoom, Jharkhand.

F6. Learned counsel for the respondent refuting the submissions ofthe counsel for the appellant contends that child Aditi has done very wellin the institution, Good Shepherd International School, Ooty. In replyfiled by the respondent, the respondent has referred to various progressreports and certificates issued by the Good Shepherd International Schoolof the child for Academic Session 2018-2019. Learned counsel submitsGthat the child has shown over all development and her participation in allthe activities inside the classroom and outside, there is no complaint ofhealth issues. She participated in several competitions and got prizesand certificates. The weight and height has specially increased. In thereply affidavit, learned counsel has referred to co-curricular report card H

of the child. In her progress report, she has been promoted to Class VI.It is submitted that it is the appellant, who has always been creatinghindrance in normal development of the child. She has always beenfrom day one poisoning the child against the respondent. The child hasalways been tutored to make complaint against the respondent. Thechild is treated in a manner by the appellant so as to alienate her fromfather. The child was in neutral environment and has done well in theschool in all fields which instead of being appreciated by the appellant,she still wants that child be taken out from the School for which severaltricks have been played by the appellant.

7. We have heard the learned counsel for the parties and perusedthe records.

8. Before we proceed to enter into the submissions of the parties,it is useful to refer to the order passed by the High Court on 26.04.2018,which is impugned in the present appeals. As noted above, the child wasinitially studying in the institution, where appellant is a teacher, i.e., MotilalNehru Public School, Jamshedpur. Now, pursuant to the orders of theHigh Court, the child was admitted for the Academic Session 2017-2018in Sacred Heart Convent School, Jamshedpur. The High Court has noticedthe report of Sacred Heart Convent School, Jamshedpur, which wasreceived from the School on 21.03.2018. The report has been extractedby the High Court in paragraph No.16 of the judgment, which is to thefollowing effect:

“”Sub:-School Performance Report of Aditi Bishakaha Das.

Sir,

“”Sub:-School Performance Report of Aditi Bishakaha Das.

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With reference to CASE No.-Cont.(Cr.)-08/2017 dated 4600/17.03.2018, Aditi Bishakaha Das, who is presently studying is Std.V, having Admission No.16510, is trying her best to come up tothe average level.

In the year 2017 when Aditi was admitted in Sacred HeardConvent School she was below average in her studies. Wheneverher mother was called by the class teacher her heath was notpermitting to visit the class teacher and the co-ordinator of thePrimary School. It seems home atmosphere is not contucive forthe child to perform well in her studies.

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The child is in the school only for six hours and the rest of the timethe child is at home. Aditi is an intelligent girl. Parents co-operationis very important. It is up to the parents to help the child and to co-operate with the school authorities. Environment is very importantfor the child’s performance and to do well in her studies. It is upto the parents to decide her further. Residential school might heldher to do well in her future studies.

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Sister Mridula Ac.

Principal,Sacred Heard Convent School, Jamshedpur.”

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9. Another factor which has been taken into consideration by theHigh Court is the report of the District Probation Officer, East Singhbhum,Jamshedpur which was called for by the Court. By letter dated10.04.2018, the District Officer, Jamshedpur has submitted that reportregarding well being of the child Aditi. in paragraph No. 5 with regard toDEducational condition, following was opined:

“5. Educational condition:- Now Aditi is in Std.5 in Sacred HeartSchool in Jamshedpur. Acceding to her School progress reportcard, she is an average student but talking with Aditi, thisinvestigator founded that she is an intelligent girl. In the bettereducational atmosphere and without any type of stress or tensionshe will do better for her future.”

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10. The High Court in paragraph 21 ultimately said:

“21. Considered thus, in the totality of the facts and circumstances,we are inclined to accede to the request of the father to allow thechild to be admitted to a reputed school i.e. Good ShepherdInternational School, Ooty in Class-V which is affiliated to ICSE.The session 2018-19 commences from 21.07.2018. In that way,the girl would not lose any valuable period of the session as it isyet to commence. As informed by the father, aptitude test andpersonal interview is to be held before 10.05.2018. Good ShepherdInternational School, Ooty as its brochure shows was establishedin 1977 and has the facilities of best teaching and learning practices,services and opportunities provided by a team of committed mentorsand facilitators. It has a knowledge village, a reputed FinishingSchools for girls along with 9-hole golf course, hospital, bank, F

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vegetable farms, dairy and poultry. It is spread over 150 acres ofverdant land in Nilgiris in Tamil Nadu, India. Avowedly, it has astate of art infrastructure for academic and boarding talent todeliver world class education. There are houses for the studentsfrom Class VI to XII. The Institution is a Member of the Councilof International Schools, a benchmark of world class schooleducation. It has a distinguished faculty who are exposed to globaldevelopments and reside within the Global Village to devotecomplete time to make the learning experience for the studentsan enriching one.”

11. The order impugned indicates that the High Court has notfinally decided both the appeals filed against the order dated 31.03.2016of the Family Court. The matter has been kept pending by the HighCourt. The High Court had directed that after child is admitted in theschool the matter should again be posted before the High Court to filecompliance report.

12. As noted above, the application which was filed by therespondent before the Family Court under the Guardian and Wards Act,1890 was confined only to the consideration of the issue as to whetherchild Aditi should be directed to be admitted in a boarding school. Therespondent has given up his claim of custody of the child and has onlypressed his prayer of sending the child to the boarding school.

13. It is also relevant to note that it is the respondent, who isbearing all expenses of the child in the boarding school at Ooty, whichare more than Rs.10 lakhs p.a. In addition to the above expenses of theschool, the respondent also offered to bear expenses of flight chargesand stay of the appellant when she visit the child at Ooty from Jamshedpur.From the material on the record, we are satisfied that the respondent’sintention has always been that the child should get best education at aneutral environment, which may help in developing her personality. It isalso to be noticed that the appellant has right from beginning opposingthe prayer of the respondent to send the child in the boarding school andtried to find fault with the school at Ooty. In the circumstance in whichthe child is there, the Court has to take extra caution and precaution toensure that the child is kept away from negative influences.

14. As noted above, even the Family Court has directed foradmitting the child in boarding school but from Academic Session 2019- AB

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A2020. The High Court initially directed that the child to be admitted inSacred Heart Convent School, Jamshedpur and after receiving a reportfrom the said School, the High Court directed for admission of Aditi inGood Shepherd International School, Ooty for the Academic Session2018-2019, which order is under challenge in these appeals.

B15. As noted above, we in our order dated 10.07.2018 declined tostay the directions of the High Court for admission of Aditi in GoodShepherd International School, Ooty in Class V. The order passed bythe High Court, impugned, in these appeals, has been given effect to andboth the appeals being still pending in the High Court awaiting final decision,we are of the view that the High Court may finally decide the appealsCafter hearing the parties. Order dated 26.04.2018 having been giveneffect to, we see no justification in interfering with this order at thisstage. Learned counsel for the parties submitted that this Court mayitself decide all the issues finally but the appeals against the order of theFamily Court being awaiting the final decision of the High Court. it is Dappropriate that the High Court may be requested to decide the appealsfinally.

16. Before we close, few observations on the issues which havearisen before us need to be made. The present is a case, where limitedissue has arisen regarding giving education to the child in boarding schoolEor to permit the status quo regarding education of the child as was on thedate when the Family Court passed order dated 31.03.2016. When thechild has to go in the environment, where there is marital discord betweenher parents affecting the peace of mind of all including the parents andchildren, child suffers physical and mental distress. The ill consequencesof the discord between mother and father effect the child in her normalFupbringing and is a negative factor on child’s personality and upbringing.This Court in Vivek Singh vs. Romani Singh, (2017) 3 SCC 231,has discussed the term “Parental Alienation Syndrome”. In paragraphNo.18 of the judgment, following was observed:- “18. ….......................Psychologists term it as “The ParentalGAlienation Syndrome”. It has at least two psychological destructiveeffects:

(i) First, it puts the child squarely in the middle of a contest ofloyalty, a contest which cannot possibly be won. The child isasked to choose who is the preferred parent. No matterHwhatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in theoverwhelming majority of cases, what the child wants and needsis to continue a relationship with each parent, as independentas possible from their own conflicts.

(ii) Second, the child is required to make a shift in assessing reality.One parent is presented as being totally to blame for all problems,and as someone who is devoid of any positive characteristics.Both of these assertions represent one parent’s distortions ofreality.

17. In the above case also there was bitter fight between fatherand mother. The Family Court has allowed the custody of the minor girlchild to the father by dismissing the petition of the respondent-motherfor custody. The High Court on appeal decided the entitlement of thecustody of the child to the mother. Aggrieved by the order of the HighCourt, father had filed the appeal in which backgrounds the aboveobservations were made by this Court. The ill effect on child, due todiscord between the parents with negative feeling against each otherhas natural effect, which hinders the child’s normal development.

18. It is well settled that while taking a decision regarding custodyor other issues pertaining to a child, welfare of the child is of paramountconsideration. This Court in Gaurav Nagpal vs. Sumedha Nagpal,(2009) 1 SCC 42, had occasion to consider the parameters whiledetermining the issues of child custody and visitation rights, entire lawon the subject was reviewed. This Court referred to English Law,American Law, the statutory provisions of Guardian and Wards Act,1890 and provisions of Hindu Minority and Guardianship Act, 1956, thisCourt laid down following in paragraph Nos. 43, 44, 45, 46 and 51:

“43. The principles in relation to the custody of a minor child arewell settled. In determining the question as to who should be givencustody of a minor child, the paramount consideration is the“welfare of the child” and not rights of the parents under a statutefor the time being in force.

44. The aforesaid statutory provisions came up for considerationbefore Courts in India in several cases. Let us deal with fewdecisions wherein the courts have applied the principles relatingto grant of custody of minor children by taking into account theirinterest and well-being as paramount consideration.

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A45. In Saraswathibai Shripad Ved v. Shripad Vasanji Ved, ILR1941 Bom 455 : AIR 1941 Bom 103; the High Court of Bombaystated; “....It is not the welfare of the father, nor the welfare of themother, that is the paramount consideration for the Court. It isBthe welfare of the minor and of the minor alone which is theparamount consideration.....”

(emphasis supplied)

46. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840,this Court held that object and purpose of the 1890 Act is notCmerely physical custody of the minor but due protection of therights of ward’s health, maintenance and education. The powerand duty of the Court under the Act is the welfare of minor. Inconsidering the question of welfare of minor, due regard has ofcourse to be given to the right of the father as natural guardianDbut if the custody of the father cannot promote the welfare of thechildren, he may be refused such guardianship.

51. The word “welfare” used in Section 13 of the Act has to beconstrued literally and must be taken in its widest sense. Themoral and ethical welfare of the child must also weigh with theECourt as well as its physical well- being. Though the provisions ofthe special statutes which govern the rights of the parents orguardians may be taken into consideration, there is nothing whichcan stand in the way of the Court exercising its parens patriaejurisdiction arising in such cases. “

F19. Every child has right to proper health and education and it isthe primary duty of the parents to ensure that child gets proper education.The Courts in exercise of parens patriae jurisdiction have to decidesuch delicate question. It has to consider the welfare of the child as ofparamount importance taking into consideration other aspects of thematter including the rights of parents also. In reference to custody of aGminor, this Court had elaborated certain principles in Thrity HoshieDolikuka vs. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544,where this Court again reiterated that welfare of the child is of paramountimportance. In paragraph No.17, following was laid down:

“17. The principles of law in relation to the custody of a minorHappear to be well-established. It is well-settled that any matter concerning a minor, has to be considered and decided only fromthe point of view of the welfare and interest of the minor. Indealing with a matter concerning a minor, the Court has a specialresponsibility and it is the duty of the Court to consider the welfareof the minor and to protect the minor’s interest. In considering thequestion of custody of a minor, the Court has to be guided by theonly consideration of the welfare of the minor.”

20. In the above case, the issue of minor girl came for considerationin the context of custody. The mother, who was school teacher wantedto send the child to boarding school, which was opposed by the father,who wanted to have custody of the minor girl. It is to be noted that in thesaid case the minor girl has expressed her wish not to go to boardingschool. This Court held that in embittered relationship between the parentsand the attempt of one spouse poisoning the mind of the child againstthe other spouse has disastrous effect. In paragraph Nos. 32 to 35following was laid down:

“32. The effect on the little girl of the embittered relationshipbetween her parents and the attempt of the father to poison themind of the daughter against her mother and to alienate her fromthe mother has been simply disastrous. The intelligent andsensible girl, distressed at the acrimony between her parents, whowanted to spend her time with each of her parents as she is deeplyattached to both, as recorded by Lentin, J. in his order dated June28, 1979, was on the verge of near nervous break-down as notedby the Division Bench in its judgment dated July 31, 1981. Thevarious orders passed in between which we have set out at lengthalso, indicate what great mental strain and agony the little girl hadsuffered because of the acrimonious dispute between herparents. During this period of two years, the girl had been underhome influence, as she had been staying with her quarrellingparents in terms of the various orders of the High Court. The littlegirl also had been compelled to make her appearances in Courtfrom time to time. The facts and circumstances clearly establishthat the effect of home influence on the minor in the present casehas been to reduce a bright, happy and sensible child to a state ofcomplete misery; and, the extreme psychological strain on thesensible mind of the little girl has caused almost a near nervousbreakdown. When the atmosphere in a house, vitiated andrendered surcharged with tension as a result of bitter squabbles AB

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between husband and wife causes misery and unhappiness to achild, who has to live in constant psychological strain in such abroken home in view of the bitter relationship between herparents for each of whom she has great affection, the healthyand normal growth of the child is bound to be seriously affected.In the interest and for the welfare of the child in such a case, thechild is necessarily to be removed from such unhealthyenvironment of a broken home surcharged with tension. In such acase, the proper and best way of serving the interest and welfareof the child will be to remove the child from such atmosphere ofacrimony and tension and to put the child in a place where theembittered relationship between her parents does not easily andconstantly effect her tender mind.

33. In the facts and circumstances of the present case the bestway to serve the welfare and interest of the child will be toremove the child from the unhealthy atmosphere at home whichhas caused a very great strain on her nerves and has certainlyaffected her healthy growth, to a place where she can live anormal healthy life and will have a good opportunity of propereducation and healthy growth. We note with satisfaction that theview that we have taken is fully supported by the report of theSocial Welfare Expert. The report of the Social Welfare Expert,though not binding on the Court is entitled to weightyconsideration. In the instant case, the Expert has made a verycareful study of the entire matter and has given a well -reasonedreport.

34. Pursuant to the order passed by the Division Bench of theBombay High Court the mother got the child admitted into KimminsBoarding School at Panchgani. By an interim order passed by thisCourt in the stay application in this appeal, the child was directedto continue her stay in the said Boarding institution. By the interimorder passed by us on the conclusion of the hearing we directedthat the child should continue her study in the Boarding School.

35. On a consideration of all the facts and circumstances of thiscase and bearing in mind the paramount consideration of the wel-fare of the child, we are of the opinion that the child’s interest andwelfare will be best served by removing her from the influence ofhome life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins BoardingSchool at Panchgani to which the child has been admitted is agood institution.”

21. In the above case, the child was allowed to continue in theboarding school. We notice one more decision of this Court in NutanGautam vs. Prakash Gautam, (2019) 4 SCC 734, which was a casewhere appeal was filed by mother of a child against the order of theHigh Court passed in First Appeal. While decreeing the divorce petitionof the husband ex parte the trial court had directed the son, the minorboy, to be admitted in a boarding school at New Delhi. Ex parte orderpassed by the trial court was challenged by the mother in the High Court,which matter was pending before the High Court. The High Court byinterim order had permitted the father to take the boy to boarding school.The said interim order was challenged in this Court. This Court interactedwith the boy and took the view that in the facts of the case, the childshould not be compelled to go to boarding school. This Court allowed thechild to continue his studies at Global International School, Shahjahanpur,where he was earlier studying in the interest of the child. Every casewhere issue pertaining to custody of child and education is decideddepends upon the facts of each case. No hard and fixed formula can befound out which can be applied to each and every case. Each case hasto be examined in its own facts. We may again refer to the judgment inThrity Hoshie Dolikuka (supra), where also this Court noticed thatchild has expressed his wishes not to go to boarding school. This Courtin the said case took the view that the minor is not fit to form an intelligentpreference, which may be taken into consideration in deciding herwelfare. In paragraph No.26, following was laid down:

“26. In the facts and circumstances of this case we are however,not inclined to interview the minor daughter, as we are satisfied inthe present case that the minor is not fit to form an intelligentpreference which may be taken into consideration in deciding herwelfare. We have earlier set out in extenso the various orderspassed by the various learned Judges of the Bombay High Courtafter interviewing the minor and the learned Judges have recordedtheir impressions in their judgments and orders. The impressionsas recorded by the learned Judges of the Bombay High Court, goto indicate that the minor has expressed different kinds of wishesat different times under different conditions. It also appears fromthe report of the Social Welfare Expert that these interviews cast A

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Aa gloom on the sensitive mind of the tender girl and caused a lot ofstrain and depression on her. Torn between her love for both herparents and the acrimonious dispute between them resulting inthe minor being dragged from court to court, we can well appreciatethat the sensitive mind of the minor girl is bound to be sadly affected.Though the girl is quite bright and intelligent as recorded by theBlearned Judges of the Bombay High Court in their orders aftertheir interviews with the girl who is of a tender age and is placedin a very delicate and embarrasing situation because of theunfortunate relationship and litigation between her parents for bothof whom she has great deal of affection, she is not in a position toCexpress any intelligent preference which will be conducive to herinterest and welfare. Mature thinking is indeed necessary in sucha situation to decide as to what will enure to her benefit andwelfare. Any child who is placed in such an unfortunate position,can hardly have the capacity to express an intelligent preferencewhich may require the Court’s consideration to decide what shouldDbe the course to be adopted for the child’s welfare. The lettersaddressed by the daughter to her mother from Panchgani andalso a letter addressed by her to her aunt (father’s sister) also goto show that the minor cannot understand her own mind properlyand cannot form any firm desire. We feel that sending for theEminor and interviewing her in the present case will not only notserve any useful purpose but will have the effect of creating furtherdepression and demoralisation in her mind.”

22. We, thus, are of the view that what is in the interest of thechild depends on the facts and circumstances of each case and has toFbe decided on its own merits without adhering to any fixed formula orrule. The appeals being pending before the High Court, we are of theview that while deciding the appeals finally, High Court should also takeinto consideration subsequent materials which may be brought before itby the parties including the progress report of the child from GoodShepherd International School, Ooty. Learned counsel has also raisedGcertain medical issues pertaining to the child. It is also open for the HighCourt to take decision on the said issues and if necessary to obtain medicalreports as may be required. In so far as interacting with the child, theHigh Court during hearing of the appeals had already interacted with thechild on many occasions and it is for the High Court to take a decisionHwith regard to interacting with the child.

23. The reports received from Child Welfare Committee, JharkhandAand Good Shepherd International School, Ooty by this Court on 29.01.2019and 02.02.2019 respectively be remitted to the High Court forconsideration in sealed cover. After we closed the hearing on 01.07.2019,another report dated 08.07.2019 has been received from Good ShepherdInternational School, Ooty in sealed cover which has not been opened.BLet all the above reports in a sealed cover be transmitted to the JharkhandHigh Court by a special Messenger, to be considered in the pending firstappeals.

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24. In view of the foregoing discussion, we do not find any goodground to interfere with the impugned judgment of the High Court. TheHigh Court is requested to decide First Appeal No.59 of 2016 and FirstAppeal No.68 of 2016 after hearing the parties keeping in view theobservations as made above. The appeals are disposed of accordingly.

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Kalpana K. Tripathy

Appeals disposed of.

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