REPORTABLE

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1553 OF 2017 (ARISING OUT OF SLP (CRL.) NO. 1867 OF 2016)

PURVI MUKESH GADA .....APPELLANT(S)

VERSUS

MUKESH POPATLAL GADA & ANR. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

It  is an unfortunate case where the parties, who are wife

and husband, are having a bitter and acrimonious fight over the

custody  of  their  children.  Such  custody  battles  are  always

regrettable, not only for the spouses who resort to this kind of

litigation, which is the offshoot of matrimonial discord and results

in their separation from each other, but also for their child/children

who become the subject matter of this kind of dispute.  Failure of

marriage generally leads to disputes of varied nature, either in the

form of divorce or enforcement of conjugal rights or maintenance

etc. and even criminal cases in the form of proceedings under

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Section 498A of the Code of Criminal Procedure, 1973 and so on.

However, in those cases where their  togetherness as spouses

had resulted in procreation of children, the war is extended by

laying respective claims on the custody of those children as well.

These  minor  children,  for  their  proper  upbringing,  need  the

company of both the parents – mother as well as the father, for

financial  reasons, security reasons,  psychological  reasons,  etc.

They need the love of both their parents.  Not only separation of

their  parents  from  each  other  deprives  these  children  24/7

company of  both the parents,  when it  results in legal  battle of

custody in the courts, the situation becomes more traumatic for

these children because of various obvious reasons.  That is why

such cases which seriously impact these children are the most

unfortunate.

2) In the instant case, marriage between the parties as per Hindu

rites  and  ceremonies  was  solemnised  way back  in  November

1997.  They lived together for number of years.  Their first child, a

boy named Taney, was born in the year 2000 and second child, a

daughter  named  Varenya,  was  born  in  the  year  2004.   The

appellant herein left the matrimonial home on February 18, 2013.

Thus, they were together for more than fifteen years when the

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desertion  took  place,  though  as  per  the  allegations  of  the

appellant  she  had  suffered  mental  and  physical  torture  at  the

hands of the respondent since the beginning of the marriage, but

for the sake and well being of the children and also because of

her financial dependency on the respondent she continued to live

with the respondent.  These allegations of maltreatment of the

appellant are denied by the respondent.  In any case, that is not

the crux of the matter.

3) It so happened that when the appellant left her matrimonial home

in  Pune  and  came  to  her  parents  house  in  Mumbai,  children

remained in the custody of  the respondent.  Tanay was not at

home as he was studying in a boarding school at Coimbatore at

that time.  Insofar as Varenya is concerned, the allegation of the

appellant  is  that  it  is  the  respondent  who  did  not  allow  the

appellant  to  take her  along  to  Mumbai.   Some attempts  were

made thereafter  for  settlement  of  their  disputes,  which did not

bear any results.  On September 18, 2014, the appellant filed a

domestic  violence  case  in  the  38th Court  of  Additional  ACMM,

Ballard  Estate,  Mumbai  on  the  ground  of  gross  mental  and

physical cruelty, including verbal and physical abuse and occult

practices.  Three months after filing the said case, the appellant

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moved  an  application  therein  praying  for  access  to  her  minor

children  during  Christmas  vacation,  which  was  allowed  to  be

availed of in the respondent’s house in Pune.

4) In  February  2015,  Varenya  was  also  admitted  in  a  boarding

school by the respondent.  The appellant, at that juncture, moved

an application for interim custody of the minor children as well as

for  maintenance.   However,  custody  was  not  allowed  on  the

ground that children were studying and it would not be proper to

give custody during the midst of their academic year.  At the same

time, interim maintenance @ Rs.30,000/- per month was directed

to be given to the appellant.   In May 2015, when the summer

vacations  were  approaching,  the  appellant  filed  an  application

praying for custody of children for half of the vacations.  Though

this application was still pending and no orders passed thereon,

the respondent himself handed over the custody of the children to

the appellant on June 17, 2015.  There are divergent stands of

the  parties  behind  such  a  move on  the  part  of  respondent  in

voluntarily giving custody of the children to the appellant.  As per

the respondent, even when there was no order of the Court, as a

goodwill gesture, he gave custody of the children to the mother

for a period of three days with clear understanding that custody of

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the children would be handed back to the appellant after three

days.   On  the  other  hand,  the  appellant  claims  that  the

respondent entrusted the children to her even when without any

order of the Court, compelled by the circumstance inasmuch as

Tanay had miserably failed in his Grade IX examinations while

studying  in  the  boarding  school  at  Coimbatore  and  the

respondent wanted the appellant to give coaching to him so that

he  could  reappear  and  pass  the  examination  in  order  to  get

promoted to Grade X without wasting an academic year.

5) The children  were  not  given  back  to  the  respondent  after  the

expiry of three days.  Here again both the parties have their own

version.   According  to  the  appellant,  the  children  themselves

refused to go back to the respondent.  On the other hand, the

respondent  maintains  that  it  is  the  appellant  whose  intentions

became bad and, thereby, she refused to handover the custody of

the children to him.  Be that as it may, the respondent filed an

application before the Court of Additional ACMM for restoration of

custody of  the  children.   The  learned Additional  ACMM called

both  the  children  in  his  Chambers  and  interacted  with  them.

Thereafter, he passed the orders dated July 01, 2015 vide which

custody of the children was given to the appellant, rejecting the

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request for restoration of their custody to the respondent.  Appeal

was filed against this order in the Sessions Court, which was also

dismissed vide judgment dated August 06, 2016.  Orders of the

learned  ACMM dated  July  01,  2015 and  that  of  the  Sessions

Court dated August 06, 2015, were challenged by the respondent

in  the form of  writ  petition  filed  in  the High Court  of  Bombay.

Disposing of this writ petition vide judgment dated February 17,

2016, the High Court has directed that custody of the children be

restored with the respondent.  It is this order which is the subject

matter of challenge in the instant appeal.

6) Before stating the reasons which prevailed with the High Court in

directing  the  custody  of  the  children  to  the  respondent,  it  is

imperative to take note of  certain proceedings before the High

Court during the pendency of the writ petition.

7) Vide order dated January 29, 2015, the High Court directed day

access on September 21 and 24, 2015.  Again vide order dated

November 11, 2015, overnight access for the coming weekend

was accorded to the respondent.  Identical overnight access was

given by the High Court vide order dated November 23, 2015.

However,  the  respondent  could  not  avail  the  benefit  of  these

orders.  According to the respondent, the appellant had violated

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these  orders,  whereas  the  appellant  has  pleaded  that  on

September 24, 2015 the respondent himself did not come to have

the access of the children and insofar as order granting overnight

access  during  weekends  is  concerned,  the  explanation  of  the

appellant is that it is the children who refused to go to their father

as  they were  petrified  and,  therefore,  themselves took  such  a

decision.

8) On December 11, 2015, the respondent was given seven days

access during Christmas vacation with  Counsellor’s  help.   For

carrying  out  this  order,  the  trial  court  called  the  children  on

December  23,  2015  where  the  respondent  was  also  called.

Again, as per the appellant’s version, the children, after remaining

with the respondent for  forty five minutes alone, ultimately told

him that they did not wish to go with him.  The respondent was to

come to pick the children on December 25, 2015 and as per the

appellant, he did not come to pick the children.

9) The respondent maintained that on all the aforesaid occasions it

is the appellant who had refused to handover the custody to him

and had, thus, violated the orders of the High Court.  Accordingly,

he  filed  an  affidavit  in  the  High  Court  for  initiating  contempt

proceedings  against  the  appellant.   The  appellant  filed  reply

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affidavit thereto refuting the allegations.  Matter was finally heard

and culminated in the judgment dated February 17, 2016.

10) With this, we come to the reasons which have weighed with

the High Court in directing the custody of the children to be given

to  their  father,  namely,  the  respondent.   After  perusing  the

impugned judgment, these are summarised as below:

(i) Orders dated December 28, 2014 and March 04, 2015 were

passed by the Additional ACMM, confirming the custody of

the  children  with  the  respondent-father  inasmuch  as  by

these orders prayer for giving interim custody of children to

the appellant-wife was rejected.  Instead, the appellant was

only  given  limited  access  during  vacation  to  meet  the

children in the school at Pune whenever she desired.

(ii) Even  though  the  appellant  had  moved  application  dated

May  27,  2015  seeking  access  to  the  children  during

vacation,  which  was  from  June  13,  2015  to  August  09,

2015, and no orders were passed in the said application, as

per the respondent, as a humanitarian gesture and without

there being any legal obligation or court directions, he went

to the appellant’s residence at Mumbai on June 17, 2015

and  left  the  children  with  the  appellant  with  a  clear

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understanding  that  he  would  pick  them up  by  June  19,

2015.  The High Court has noted the stand of the appellant

as well,  but  has mentioned that  as  per  the respondent’s

case when he went to take the custody of the children on

June 19, 2015, the appellant refused to restore the custody.

The High Court  has  given  weightage to  the  fact  that  on

June 17, 2015, the respondent had placed the children in

the custody of the appellant even when there was no court

order or legal obligation.

(iii) The High Court wanted to interact with the children in order

to ascertain their wishes as well as to determine as to which

course of action is appropriate in the welfare of the children.

However,  before  doing  so,  the  High  Court  deemed  it

appropriate  to  grant  weekend  access  to  the  respondent.

For this,  directions were given (which have already been

taken  note  of).   As  per  the  High  Court,  prima  facie  it

appeared  that  the  appellant  was  responsible  for

non-compliance  of  those  orders  and  even  if  it  is  to  be

believed that the children did not show their unwillingness to

go to their father, it indicates the extent of influence exerted

by the mother upon her minor children.

(iv) As per the High Court, in the face of two detailed orders

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dated December 28, 2014 and March 04, 2015 passed by

the Additional ACMM declining custody of minor children to

the  appellant  and  allowing  the  respondent  to  retain  their

custody, there was no reason not to restore the custody to

the respondent  on June 19,  2015.   It  has observed that

subsequent orders of Additional ACMM declining to give the

custody, which is upheld by the Sessions Court, are without

application of mind.

(v) The  High  Court  has  discussed  the  law  on  custody  of

children and explained the ‘welfare principle’, which is the

paramount consideration while deciding custody matters is

to  see  where  the  welfare  of  children  lies.   Applying  this

principle, the direction is given to restore the custody of the

children to the respondent after the end of academic term in

April or May 2016.

11) We may say at the outset that though the ‘welfare principle’

is correctly enunciated and explained in the impugned judgment,

no reasons are given as to how this principle weighed, on the

facts and circumstances of this case, in favour of the respondent.

Instead two main reasons which have influenced the High Court

are: (i) earlier detailed orders are passed by the Additional ACMM

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allowing  the  respondent  to  retain  the  custody;  and  (ii)  the

appellant here had not given access of children to the respondent

even  during  weekend,  in  spite  of  orders  passed  by  the  High

Court.

12) After hearing the counsel for the parties at length, we are of

the opinion that the matter is not dealt with by the High Court in

right  perspective.   Before supporting these comments with our

reasons,  it  would  be  apposite  to  take  note  of  certain

developments  from  June  17,  2015,  the  date  on  which  the

respondent had himself handed over the children to the appellant,

till  the  passing  of  the  orders  by  the  High  Court.   It  is  also

necessary  to  state  the  events  which  took  place  during  the

pendency of these proceedings.

13) Whether the respondent had handed over the custody of

the children to the appellant on a humanitarian gesture or not,

fact which is not in dispute is that Tanay had failed in his Grade IX

examinations and he was to reappear for the same.  It is also a

fact that it is the guidance and tuition of the appellant that Tanay

passed  the  examinations  on  reappearance  and  could  be

promoted to Grade X.  Another fact which needs to be noted here

is that when the appellant left the matrimonial home, Tanay was

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not  residing  with  the parties.   He was admitted  in  a  boarding

school in Coimbatore, a far-away place from Pune.  No doubt, the

respondent claims that intention in admitting Tanay in a boarding

school in Coimbatore was that he should get best education as

the school in which he was admitted is a prestigious educational

institution.  At the same time, it is also a fact that Tanay was not in

the physical company of his father on day-to-day basis.  It is also

a harsh reality that he was not doing well in studies during the

period his legal custody was entrusted to the respondent.  His

overall performance in most of the subjects was dismal and he

had even failed in Grade IX.  At that stage when, within few days,

there  was  a  re-examination,  handing  over  Tanay,  along  with

Varenya,  to  the appellant,  without  even any court  order, lends

credence to the version of the appellant that the purpose was to

give  appropriate  tuition  to  Tanay  by  the  appellant  so  that  his

academic year is not wasted.  Another fact which needs to be

emphasised at this stage is that though the custody of Varenya

was also  with  the  respondent  and  request  of  the  appellant  to

hand over interim custody of the children did not prevail with the

Additional  ACMM who  rejected  this  request  vide  orders  dated

December  28,  2014  and  March  04,  2015,  even  Varenya  was

admitted in a boarding school by the respondent thereafter.  This

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fact also gives some credence to the version of the appellant that

because of his pre-occupation in the business or otherwise, the

respondent  was not  in  a position to take personal  care of  the

children and, therefore, he put both of the children in the boarding

schools.

14) After the children came to the appellant, they were admitted

in  a  school  in  Mumbai.   It  is  pertinent  to  note  that  Tanay’s

academic performance has improved significantly.  He is getting

very  high  grades  in  the  examinations.   In  fact,  academic

performance of Varenya has also gone up.  This factor, though

noted by the High Court, has been lightly brushed aside with the

observations that if the children were not doing well earlier, blame

cannot  be  put  on  the  respondent  as  it  could  be  the  result  of

disputes between the parents.  In the process what is ignored is

that  in  spite  of  the  said  dispute  still  subsisting,  the  academic

performance of the children, while in the custody of their mother,

has gone up tremendously.

15) When the special leave petition had come up for hearing, on

the  first  day  itself  the  respondent  had  appeared  through  his

counsel as a caveator.  Children were also brought to the Court

and this  Court  interacted with them.  While  issuing the notice,

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based on the interaction with the children, who desired to remain

with their mother, directions contained in the impugned judgment

were stayed.  At the same time, the respondent was given access

to these children as well as visitation rights.  Notice was issued

on March  04,  2016.   During  the  period  of  pendency of  these

proceedings for more than a year, the respondent has met the

children regularly with the grant of visitation rights.  This Court,

just  before  final  hearing,  again  met  the  children.   Tanay  is

seventeen years of age and Varenya is thirteen years old.  At this

age, they are capable of understanding where their welfare lies.

This Court has found that both the children are very comfortable

in the company of their mother.  They have expressed their desire

to stay with their mother.  This Court also feels that welfare of the

children lies by allowing the appellant to retain the custody of the

children.   Circumstances  explained  above  provide  adequate

reasons for taking this course of action.  Children at discernible

age  of  seventeen  and  thirteen  years  respectively,  are  better

equipped, mentally as well as psychologically, to take a decision

in this behalf.  It would be worthwhile to mention that during our

interaction with these children, they never spoke ill of their father.

In  fact,  they  want  to  be  with  the  respondent  as  well  and

expressed their desire to remain in touch with him and to meet

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him regularly.  They never showed any reluctance in this behalf.

At the same time, when it came to choosing a particular parent for

the  purposes  of  custody, they preferred  their  mother.  In  fact,

these were the reasons because of which the Additional ACMM

had passed orders dated July 01,  2015 (after  interviewing the

children  and  ascertaining  their  wishes  as  well  as  welfare)

rejecting the request of the respondent to restore custody to him.

Same course  of  action  was  adopted  by the  learned Sessions

Court while dismissing the appeal of the respondent on August

06, 2015 and affirming the order of Additional ACMM dated July

01, 2015.  The High Court has discarded these orders without

giving  any  cogent  reasons  and  on  the  spacious  and  tenuous

ground that such orders could not have been passed in view of

the  earlier  detailed  orders  of  the  Additional  ACMM  dated

December 28,  2015 and March 04, 2015, thereby refusing the

custody of the children to the appellant.  In this process, what is

ignored  by  the  High  Court  was  that  even  those  were  interim

orders and the custody was refused at that juncture because of

the reason that  children were in the mid-term of the academic

session.  Be that as it may, it was incumbent upon the High Court

to find out the welfare of the children as on that time when it was

passing the order.  As pointed out above, apart from discussing

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the ‘welfare principle’, the High Court has not done any exercise

in weighing the pros and cons for determining as to which of the

two alternatives, namely, giving custody to the appellant or to the

respondent, is better and more feasible.

16) Learned counsel  for  the  respondent  had  made a  fervent

plea to the effect that if custody is retained by the appellant, it

would amount to giving her advantage of her own wrong as she

took undue advantage of the gracious act of the respondent in

voluntarily handing over the custody of the children, but only for

three days.  He also highlighted the conduct of the appellant, as

discussed by the High Court, which has castigated the appellant

in this behalf in not obeying the interim directions of giving access

to the respondent.

17) In view of our aforesaid discussion, we do not find these

arguments to be meritorious.  It also needs to be emphasised that

the Court, in these proceedings, is not concerned with the dispute

between the husband and the wife inter se but about the custody

of children and their welfare.  A holistic approach in this behalf is

to be undertaken.  Scales tilt in favour of the appellant when the

matter is examined from that point of view.

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18) As a result, this appeal is allowed, resulting in setting aside

of the impugned order dated February 17, 2016 passed by the

High  Court  in  the  writ  petition  and  restoring  the  order  dated

August  06,  2015  passed  by  the  Court  of  Sessions,  Greater

Mumbai, which affirmed the order dated July 01, 2015 passed by

the  Court  of  38th Court  of  Additional  ACMM,  Ballard  Estate,

Mumbai.   At  the  same  time,  weekend  access  given  to  the

respondent by interim directions of  this Court  shall  continue to

prevail.   Moreover,  during  Dussehra,  Diwali,  Christmas  or

summer vacations etc., the respondent shall be entitled to avail

the custody for half of the durations of those vacations.  However,

while effecting this arrangement, it shall be ensured that studies

of  the  children  are  not  affected.   In  case  of  any  difficulty  in

working out the aforesaid modalities, the parties shall be at liberty

to approach the trial court.  Since the custody of the children is

allowed  to  be  retained  by  the  appellant-mother,  domicile

certificates of the children as well as their passports which are

with the respondent, shall be handed over to the appellant.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

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NEW DELHI; SEPTEMBER 4, 2017.

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ITEM NO.1501          COURT NO.6               SECTION II-A                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).1553/2017 PURVI MUKESH GADA                            Appellant(s)                                 VERSUS MUKESH POPATLAL GADA & ANR.                 Respondent(s) ([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.]) Date : 04-09-2017 This matter was called on for pronouncement

of JUDGMENT today.   For Appellant(s) Ms. Kamini Jaiswal, AOR                     For Respondent(s) Mr. Baij Nath Patel, Adv.

Ms. Sweta, Adv. Mr. Chanchal Kumar Ganguli, AOR           

          Hon'ble Mr. Justice A.K. Sikri pronounced the   

judgment of the Bench comprising Hon'ble Mr. Justice Ashok Bhushan and His Lordship.  

       Appeal is allowed in terms of signed Reportable  Judgment.

Pending applications, if any, stand disposed of.

  (B.PARVATHI)                    (MALA KUMARI SHARMA) COURT MASTER                        COURT MASTER  

(Signed reportable judgment is placed on the file)

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