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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.5388­5389 Of 2019 (arising out of SLP(C)Nos.15912­15913 of 2018)

SHEOLI HATI            ... APPELLANT(S)  

VERSUS

SOMNATH DAS        ... RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

2. The appellant aggrieved by the judgment dated

26.04.2018 passed by a Division Bench of the High Court

of Jharkhand at Ranchi has come up in these appeals.

The impugned judgment of the High Court was passed in

First Appeal No.59 of 2016 filed by the appellant and

First Appeal No.68 of 2016 filed by the respondent both

challenging the order dated 31.03.2016 passed by the

Principal Judge, Family Court, Jamshedpur in

Guardianship Case No.11 of 2012 filed by the respondent

under Sections 7 and 12 of the Guardian and Wards Act,

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1890.

3. The brief facts and circumstances giving rise to

these appeals are:

3.1 The appellant and the respondent were married

in the year 2003. There has been matrimonial

dispute between the parties since the year

2006.  A girl child was born to the appellant

and the respondent on 09.04.2007, named as

Aditi. The appellant filed complaint against

the husband before various authorities,

employer of the respondent as well as National

Human Rights Commission. A a petition for

seeking restitution of conjugal rights under

Section 9 of the Hindu Marriage Act, 1955 was

filed by the respondent at Bengaluru where the

respondent was residing. In the year 2008, the

appellant lodged FIR against the respondent

under Section 498A of the IPC being Case

No.204 of 2008. In the year 2008, the

respondent filed an application for seeking a

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decree of divorce before the Family Court,

Bengaluru which was registered as Matrimonial

Case No.3358 of 2008.

3.2 The respondent filed an application before the

High Court of Jharkhand at Ranchi seeking

anticipatory bail in connection with Kadma PS

Case No.204 of 2008 in which case parties were

referred to mediation and conciliation to

amicably resolve their issues. On 11.09.2009,

the Principal Judge, Family Court at Bengaluru

granted ex parte decree of divorce dated

11.09.2009. During the pendency of the

Anticipatory Bail Application being No.518 of

2009, the parties amicably settled all their

disputes before Jharkhand Legal Services

Authority. A Settlement dated 19.12.2009

between  the  parties  was  communicated to  the

High Court. As per the terms of the

settlement,  the  respondent agreed to pay an

amount of Rs.5,00,000/­ as permanent alimony

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to the appellant. Further, the respondent

agreed to deposit a sum of Rs.5,00,000/­ in

the name of Aditi for her all time

maintenance. The  appellant further agreed not

to challenge ex parte divorce decree. The

appellant also agreed to allow the respondent

to meet their child once in every two months

starting from January, 2010. The High Court

disposed of the matter in terms of the

settlement.

3.3 The respondent alleging obstruction by the

appellant in his visiting rights filed an

application seeking custody of the child,

Aditi under Sections 7 and 12 of the Guardian

and Wards Act, 1890 at Bengaluru. The said

proceedings under Guardian and Wards Act were

transferred to Family Court at Jamshedpur

under order  of this  Court dated  27.03.2012.

The appellant filed written statement in

Guardianship Case No.11 of 2012. The

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respondent made an amendment application

before the Family Court, Jamshedpur praying

for an alternative relief for addition of a

prayer in his application in Guardianship

Case, i.e., for directing the child to be

admitted in any reputed residential/boarding

school in India at the expenses of the

respondent, which amendment application was

allowed by an order dated 16.05.2013. The

Principal Judge, Family Court by order dated

31.03.2016 decided the   Guardianship Case

No.11 of 2012. It is to be noted that in the

Guardianship proceedings the respondent has

given up his claim of the custody of child and

confined his case to alternative prayer, i.e.,

direction to admit the child in a boarding

school. The Family Court, Jamshedpur in

paragraph 41 of the judgment directed:

"41. Thus, in view of the discussions made above, I come to the conclusion that minor daughter of the petitioner and respondent Aditi Bishaskha Das shall continue

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in the care, custody and guardianship of her mother till she reaches the age of 11 years and shall continue to pursue her education from Jamshedpur along with her mother. However, the petitioner shall have the visitation right as is continuing since before i.e. during the pendency of the case. However, the petitioner shall be entitled to the custody of the child for half of each vacation of the school where Aditi is or shall be studying and for the first half of vacation Aditi shall be in the care and custody of her father i.e. petitioner   and for the second half of the vacation she shall be under the care and custody of her mother. The vacations referred to above are the Summer and Winter vacations in every school. Further, Aditi upon attaining the age of 12 years i.e. for the academic session 2019­2020 she shall be sent to a boarding school of repute where she qualifies and is able to get admission. The entire cost of such Boarding School shall be borne by the petitioner and once Aditi gets into the Boading School then the respondent shall have the right to visit her daughter as permitted by the School calendar but at the cost of the petitioner and the petitioner shall pay such cost which shall include the travelling air­fare and other expenses in advance. Issue No.V is decided accordingly. The custody in course of vacation shall continue as before.”

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3.4 The Family Court directed that Aditi shall

continue in  the  custody  and  guardianship of

her mother till she reaches the age of 11

years and continue to pursue her education

from Jamshedpur. The respondent was allowed

visitation right and also allowed custody of

the child for half of each vacation of the

school. First half of the vacation be in the

care and custody of her father and second half

be in the custody of the mother. The Family

Court further directed that for the academic

session 2019­2020 she shall be sent to a

boarding school of repute where she qualifies

and is able to get admission.

3.5 Aggrieved by the judgment of the Family Court

both the parties have filed appeals in the

High Court. The appellant filed First Appeal

No.59 of 2016 and the respondent filed First

Appeal No.68 of 2016. The High Court

interacted with the child on several

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occasions. The High Court in the aforesaid

appeals passed an order dated 17.11.2016

proposing to the parties that the 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 admitted in

Sacred Heart Convent School, Jamshedpur. The

High Court also increased the visiting hours

of the respondent and also permitted the

respondent to get the child registered for

admission in La Martiniere Girls School,

Kolkata. Against the order dated 28.11.2016,

the appellant filed SLP(C)Nos.37915­37916 of

2016 which were dismissed by this Court by

order dated 23.12.2016. By the subsequent

order dated  26.04.2018 which is  impugned in

the present appeals, the High Court directed

the child to be admitted in Good Shepherd

International School, Ooty in Class IV which

is a residential institution affiliated to

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ICSE for the Session 2018­2019, which

commenced from 21.07.2018. These appeals were

taken by this Court on 10.07.2018. In its

order dated 10.07.2018 following observations

were made by this Court:

"After hearing the learned counsel for the parties yesterday as well as today, we are of the opinion that there is no need to stay the directions of the High Court in the impugned order whereby the High Court has directed that the child Aditi Bisakha Das be admitted in Good Shephard International School, Ooty in Class V where the respondent has already secured admission for her. This arrangement, as per the High Court's order, is made for the Academic Year 2018­19. We also find that the High Court has passed this order after weighing and discussing all the alternatives and 2 pros and cons of the matter and has formed its opinion that it is one of the most suitable solutions.  

We feel that once such an order is given on objective considerations, it is better that the child is admitted in the said School in the current academic year in order to find out as to how she is able to cope up with and studies in the said School at Ooty and what kind of progress she is able to make on shifting her from the present

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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 Shephard International

School, Ooty reluctantly by the appellant.

With regard to the visiting rights of the

respondent orders were passed for the winter

vacation by  this Court on 12.12.2018. After

spending second  half of  the  winter vacation

with father the child went to Jamshedpur to

attend birthday of her mother on 13.01.2019.

After attending birthday she was to catch a

flight for Bengaluru from Ranchi. Father along

with an Advocate was to take the child. On

14.01.2019 at the Airport child complained to

the CISF personnel that she did not want to go

along with father to Bengaluru. The CISF

officer informed the concerned Police Station

and the lady Police personnel interacted with

the child. Although the appellant and her

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father were telephonically informed but they

did not come to take the child and the child

was ultimately lodged in a shelter home. The

Child Welfare Committee, Ranchi (Jharkhand)

also interacted with the child. This Court

vide order dated 21.01.2019 directed

following:

“The child being student in a good school and her session coming to close, we are of the view that first thing to be done is to direct the Child Welfare Committee to send the child to the school. Respondent/father will bear all expenses for traveling of the child along with one woman companion which may be deputed by the Child Welfare Committee to take the child and handover the child to the Principal of the School. This order shall be complied by the Child Welfare Committee within three days from the date of production of this order. All other issues between the parties shall be taken care subsequently. We further direct that report of the Child Welfare Committee be submitted in a sealed cover before this Court. The Principal of the school also submit an interim report of the academic session in a sealed cover before this Court. Reports be submitted within two weeks. The school may also send detail report by the end of this academic session.

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Accordingly, I.A. is disposed of.  

List the matters after four weeks.”  

3.7 After aforesaid order dated 21.01.2019, the

child was handed over to the School to

complete her session. Further, on 21.02.2019,

the report from Child Welfare Committee,

Ranchi, Jharkhand and on 29.01.2019 and

02.02.2019 report from Good Shepherd

International School, Tamil Nadu were

received. By order dated 03.05.2019 on the

request of the mother she was permitted to

have the custody of the child during the

entire vacation with effect from 22.05.2019.

Thereafter, the matter was heard on

01.07.2019.

4. Learned counsel for the appellant submits that the

child is not doing well at Good Shepherd International

School, Ooty and she has suffered medical issues also.

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The appellant submits that proper medical care was not

taken by the School. Learned counsel submits that the

appellant has always contended that child shall be

allowed to get her education at Jamshedpur where the

mother is residing. An I.A.No.74433 of 2019 has been

filed by the appellant where the second prayer is that

Aditi to be admitted in some reputed school for the

Academic Session 2019­2020 in Jamshedpur or

alternatively   Aditi be admitted in some boarding

school near Jamshedpur. In the application, the

appellant has referred to La­Martiniere Girls School,

Kolkata and Loreto Convent Entally, Kolkata.

5. Learned counsel for the appellant has also referred

to medical prescription dated 20.05.2019 of one Dr.

Devi Prasad Rao, Child Specialist, Hospital Road, Ooty

and one further prescription dated 07.06.2019 of Aditi

from Zila Mansik Swasthaya Karyakaram, Jamshedpur, East

Singhbhoom, Jharkhand.

6. Learned counsel for the respondent refuting the

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submissions of the counsel for the appellant contends

that child Aditi has done very well in the institution,

Good Shepherd International School, Ooty. In reply

filed by the respondent, the respondent has referred to

various progress reports and certificates issued by the

Good Shepherd International School of the child for

Academic Session 2018­2019. Learned counsel submits

that the child has shown over all development and her

participation in all the activities inside the

classroom and outside, there is no complaint of health

issues. She participated in several competitions and

got prizes and certificates. The weight and height has

specially increased. In the reply affidavit, learned

counsel has referred to co­curricular report card 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 creating hindrance in

normal development of the child. She has always been

from day one poisoning the child against the

respondent. The child has always been tutored to make

complaint against the respondent. The child is treated

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in a manner by the appellant so as to alienate her from

father. The child was in neutral environment and has

done well in the school in all fields which instead of

being appreciated by the appellant, she still wants

that child be taken out from the School for which

several tricks have been played by the appellant.

7. We have heard the learned counsel for the parties

and perused the 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 was

initially studying in the institution, where appellant

is a teacher, i.e., Motilal Nehru Public School,

Jamshedpur.  Now, pursuant to the orders  of the High

Court, the child was admitted for the Academic Session

2017­2018 in  Sacred Heart Convent School, Jamshedpur.

The High Court has noticed the report of Sacred Heart

Convent School, Jamshedpur, which was received from the

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School on 21.03.2018. The report has been extracted by

the High Court in paragraph No.16 of the judgment,

which is to the following effect:

"”Sub:­School Performance Report of Aditi      Bishakaha Das.

Sir,

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 to the average level.

In the year 2017 when Aditi was admitted in Sacred Heard Convent School she was below average in her studies. Whenever her mother was called by the class teacher her heath was not permitting to visit the class teacher and the co­ordinator of the Primary School. It seems home atmosphere is not contucive for the child to perform well in her studies.

The child is in the school only for six hours and the rest of the time the child is at home. Aditi is an intelligent girl. Parents co­ operation is very important. It is up to the parents to help the child and to co­operate with the school authorities. Environment is very important for the child's performance and to do well in her studies. It is up to the parents to decide her further. Residential school might held her to do well in her future studies.

Sister Mridula Ac.

Principal, Sacred Heard Convent School, Jamshedpur.”

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9. Another factor which has been taken into

consideration by the High Court is the report of the

District Probation Officer, East Singhbhum, Jamshedpur

which was called for by the Court. By letter dated

10.04.2018, the District Officer, Jamshedpur has

submitted that report regarding well being of the child

Aditi. in paragraph No. 5 with regard to Educational

condition, following was opined:

"5. Educational condition:­ Now Aditi is in Std.5 in Sacred Heart School in Jamshedpur. Acceding to her School progress report card, she is an average student but talking with Aditi, this investigator founded that she is an intelligent girl. In the better educational atmosphere and without any type of stress or tension she will do better for her future.”

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 the child to be admitted to a reputed school i.e. Good Shepherd International School, Ooty in Class­V which is affiliated to ICSE. The session 2018­19 commences from 21.07.2018. In that way, the girl would not lose any valuable period of the session as it is yet to commence. As informed by the father, aptitude

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test and personal interview is to be held before 10.05.2018. Good Shepherd International School, Ooty as its brochure shows was established in 1977 and has the facilities of best teaching and learning practices, services and opportunities provided by a team of committed mentors and facilitators. It has a knowledge village, a reputed Finishing Schools for girls along with 9­hole golf course, hospital, bank, vegetable farms, dairy and poultry. It is spread over 150 acres of verdant land in Nilgiris in Tamil Nadu, India. Avowedly, it has a state of art infrastructure for academic  and boarding talent to deliver world class education. There are houses for the students from Class VI to XII. The Institution is a Member of the Council of International Schools, a benchmark of world class school education. It has a distinguished faculty who are exposed to global developments and reside within the Global Village to devote complete time to make the learning experience for the students an enriching one.”

11. The order impugned indicates that the High Court

has not finally decided both the appeals filed against

the  order dated  31.03.2016 of the Family Court.  The

matter has been kept pending by the High Court. The

High Court had directed that after child is admitted in

the school the matter should again be posted before the

High Court to file compliance report.

12. As noted above, the application which was filed by

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the respondent before the Family Court under the

Guardian and Wards Act, 1890 was confined only to the

consideration of the issue as to whether child Aditi

should be directed to be admitted in a boarding school.

The respondent has given up his claim of custody of the

child and has only pressed his prayer of sending the

child to the boarding school.

13. It is also relevant to note that it is the

respondent, who is bearing all expenses of the child in

the boarding school at Ooty, which are more than Rs.10

lakhs p.a.   In addition to the above expenses of the

school, the respondent also offered to bear expenses of

flight charges and 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's

intention has always been that the child should  get

best education at a neutral environment, which may help

in developing her personality.   It is also to be

noticed that the appellant has right from beginning

opposing the prayer of the respondent to send the child

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in the boarding school and tried to find fault with the

school at Ooty. In the circumstance in which the child

is  there,    the Court has to take extra caution and

precaution to ensure that the child is kept away from

negative influences.  

14. As noted above, even the Family Court has directed

for  admitting the child  in boarding  school but from

Academic Session 2019­2020. The High Court initially

directed that the child to be admitted in Sacred Heart

Convent School, Jamshedpur and after receiving a report

from the said School, the High Court directed for

admission of Aditi in   Good Shepherd International

School, Ooty for the Academic Session 2018­2019, which

order is under challenge in these appeals.

15. As noted above, we in our order dated 10.07.2018

declined to stay the directions of the High Court for

admission of Aditi in Good Shepherd International

School, Ooty in Class V. The order passed by the High

Court, impugned, in these appeals, has been given

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effect to and both 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 appeals

after hearing the parties. Order dated 26.04.2018

having been given effect to, we see no justification in

interfering with this order at this stage. Learned

counsel for the parties submitted that this Court may

itself decide all the issues finally but the appeals

against the order of the Family Court being awaiting

the final decision of the High Court. it is appropriate

that the High Court may be requested to decide the

appeals finally.

16. Before we close, few observations on the issues

which have arisen before us need to be made. The

present is a case, where limited issue has arisen

regarding giving education to the child in boarding

school or to permit the status quo regarding education

of the child as was on the date when the Family Court

passed order dated 31.03.2016. When the child has to

go in the environment, where there is marital discord

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between her parents affecting the peace of mind of all

including the parents and children, child suffers

physical and mental distress. The ill consequences of

the discord between mother and father effect the child

in her normal upbringing 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 paragraph

No.18 of the judgment, following was observed:­

“18. ….......................Psychologists term it as “The Parental Alienation Syndrome”. It has at least two psychological destructive effects:  

(i)  First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as 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.

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Both of these assertions represent one parent's distortions of reality.  

17. In the above case also there was bitter fight

between father and mother. The Family Court has allowed

the custody of the minor girl child to the father by

dismissing the petition of the respondent­mother for

custody. The High Court on appeal decided the

entitlement of the custody of the child to the mother.

Aggrieved by the order of the High Court, father had

filed the appeal in which backgrounds the above

observations were made by this Court. The ill effect on

child, due to discord between the parents with negative

feeling against each other has natural effect, which

hinders the child's normal development.

18. It is well settled that while taking a decision

regarding custody or other issues pertaining to a

child, welfare of the child is of paramount

consideration. This Court in Gaurav Nagpal vs. Sumedha

Nagpal, (2009) 1 SCC 42,  had occasion to consider the

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parameters while determining the issues of child

custody and visitation rights, entire law on 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, this Court laid down

following in paragraph Nos. 43, 44, 45, 46 and 51:

“43. 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.  

44. 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 well­being as paramount consideration.  

45.  In Saraswathibai Shripad Ved v. Shripad Vasanji Ved, 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 of the minor alone which is the paramount consideration.....”  

  (emphasis supplied)

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46. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of the 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.

51. 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. ”

19. Every child has right to proper health and

education and it is the primary duty of the parents to

ensure that child gets proper education. The Courts in

exercise of parens patriae jurisdiction have to decide

such delicate question. It has to consider the welfare

of the child as  of paramount importance  taking into

consideration other aspects of the matter including the

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rights of parents also. In reference to custody of a

minor, this Court had elaborated certain principles in

Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka,

(1982) 2 SCC 544,  where  this Court again reiterated

that welfare of the child is of paramount importance.

In paragraph No.17, following was laid down:

“17. The principles of law in relation to the custody of a minor appear to be well­ established. It is well­settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.”

20. In the above case, the issue of minor girl came for

consideration in the context of custody. The mother,

who was school teacher wanted to 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 the said case the minor girl has

expressed her wish not to go to boarding school. This

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Court held that in embittered relationship between the

parents  and  the  attempt  of one spouse poisoning  the

mind of other spouse has disastrous effect. In

paragraph Nos. 32 to 35 following was laid down:

“32. The effect on the little girl of the embittered relationship between her parents and the attempt of the father to poison the mind of the daughter against her mother and to alienate her from the mother has been simply disastrous. The intelligent and sensible girl, distressed at the acrimony between her parents, who  wanted to spend her  time with each of her parents as she is deeply attached to both, as recorded by Lentin, J. in his order dated June 28, 1979, was on the verge of near nervous break­down as noted by the Division Bench in its judgment dated July 31, 1981. The various orders passed in between which we have set out at length also, indicate what great mental strain and agony the little girl had suffered because of the acrimonious dispute between her parents. During this period of two years, the girl had been under home influence, as she had been staying with her quarrelling parents in terms of the various orders of the High Court. The little girl also had been compelled to make her appearances in Court from time to time. The facts and circumstances clearly establish that the effect of home influence on the minor in the present case has been to reduce a bright, happy and sensible child to a state of complete misery; and, the extreme psychological strain on the sensible mind of the little girl has caused almost a near nervous breakdown. When the atmosphere in a house, vitiated and rendered surcharged with

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tension as a result of bitter squabbles between husband and wife causes misery and unhappiness to a child, who has to live in constant psychological strain in such a broken home in view of the bitter relationship between her parents for each of whom she has great affection, the healthy and 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, the child is necessarily to be removed from such unhealthy environment of a broken home surcharged with tension. In such a case, the proper and best way of serving the interest and welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embittered relationship between her parents does not easily and constantly effect her tender mind.

33. In the facts and circumstances of the present case the best way to serve the welfare and interest of the child will be to remove the child from the unhealthy atmosphere at home which has caused a very great strain on her nerves and has certainly affected her healthy growth, to a place where she can live a normal healthy life and will have a good opportunity of proper education and healthy growth. We note with satisfaction that the view that we have taken is fully supported by the report of the Social Welfare Expert. The report of the Social Welfare Expert, though not binding on the Court is entitled to weighty consideration. In the instant case, the Expert has made a very careful study of the entire matter and has given a well ­reasoned report.

34. Pursuant to the order passed by the Division Bench of the Bombay High Court the mother  got the  child  admitted into Kimmins

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Boarding School at Panchgani. By an interim order passed by this Court in the stay application in this appeal, the child was directed to continue her stay in the said Boarding institution. By the interim order passed by us on the conclusion of the hearing we  directed that the  child  should continue her study in the Boarding School.

35. On a consideration of all the facts and circumstances of this case and bearing in mind the paramount consideration of the welfare of the child, we are of the opinion that the child's interest and welfare will be best served by removing her from the influence of home life and by directing that she should continue to remain in the Boarding School. It is not in dispute that Kimmins Boarding School at Panchgani to which the child has been admitted is a good institution.”

21. In the above case, the child was allowed to

continue in  the  boarding school. We  notice one more

decision of this Court in  Nutan Gautam vs. Prakash

Gautam, (2019) 4 SCC 734, which was a case where appeal

was filed by mother of a child against the order of the

High Court passed in First Appeal. While decreeing the

divorce petition of the husband ex parte the trial

court had directed the son, the minor boy, to be

admitted in a boarding school at New Delhi. Ex parte

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order passed by the trial court was challenged by the

mother in the High Court, which matter was pending

before the High Court. The High Court by interim order

had permitted the father to take the boy to boarding

school. The said interim order was challenged in this

Court. This Court interacted with the boy and took the

view that in the facts of the case, the child should

not be compelled to go to boarding school. This Court

allowed  the  child to continue his studies at Global

International School, Shahjahanpur, where he was

earlier studying in the interest of the child. Every

case where issue pertaining  to custody of child  and

education is decided   depends upon the facts of each

case. No hard and fixed formula can be found out which

can be applied to each and every case. Each case has to

be examined in its own facts. We may again refer to the

judgment in Thrity Hoshie Dolikuka (supra),  where also

this Court noticed that child has expressed his wishes

not to go to boarding school. This Court in the said

case took the view that the minor is not fit to form an

intelligent preference, which may be taken into

31

consideration in deciding her welfare. 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 in the present case that the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. We have earlier set out in extenso the various orders passed by the various learned Judges of the Bombay High Court after interviewing the minor and the learned Judges have recorded their impressions in their judgments and orders. The impressions as recorded by the learned Judges of the Bombay High Court, go to indicate that the minor has expressed different kinds of wishes at different times under different conditions. It also appears from the report of the Social Welfare Expert that these interviews cast a gloom on the sensitive mind of the tender girl and caused a lot of strain and depression on her. Torn between her love for both her parents and the acrimonious dispute between them resulting in the minor being dragged from court to court, we can well appreciate that the sensitive mind of the minor girl is bound to be sadly affected. Though the girl is quite bright and intelligent as recorded by the learned Judges of the Bombay High Court in their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarrasing situation because of the unfortunate relationship and litigation between her parents for both of whom she has great deal of affection, she is not in a position to express any intelligent preference which will be conducive to her interest and welfare. Mature thinking is indeed necessary in such a situation to decide as to what will

32

enure to her benefit and welfare. Any child who is placed in such an unfortunate position, can hardly have the capacity to express an intelligent preference which may require the Court's consideration to decide what should be the course to be adopted for the child's welfare. The letters addressed by the daughter to her mother from Panchgani and also a letter addressed by her to her aunt (father's sister) also go to show that the minor cannot understand her own mind properly and cannot form any firm desire. We feel that sending for the minor and interviewing her in the present case will not only not serve any useful purpose but will have the effect of creating further depression and demoralisation in her mind.”

22. We, thus, are of the view that what is in the

interest of the child depends on the facts and

circumstances of each case and has to be decided on its

own  merits without adhering  to any fixed formula or

rule. The appeals being pending before the High Court,

we are of the view that while deciding the appeals

finally, High Court should also take into consideration

subsequent materials which may be brought before it by

the parties including the progress report of the child

from  Good Shepherd International School, Ooty. Learned

counsel has also raised certain medical issues

pertaining to the child. It is also open for the High

33

Court to take decision on the said issues and if

necessary to obtain medical reports as may be required.

In so far as interacting with the child, the High Court

during hearing of the appeals had already interacted

with the child on many occasions and it is for the High

Court to take a  decision with regard to  interacting

with the child.

23.  The reports received from Child Welfare Committee,

Jharkhand and Good Shepherd International School, Ooty

by this Court on 29.01.2019 and 02.02.2019 respectively

be remitted to the High Court for consideration in

sealed cover.   After we closed the hearing on

01.07.2019, another report dated 08.07.2019 has been

received from Good Shepherd International School, Ooty

in sealed cover which has not been opened.  Let all the

above reports in a sealed cover be transmitted to the

Jharkhand High Court by a special Messenger, to be

considered in the pending first appeals.

24. In view of the foregoing discussion, we do not find

34

any good ground to interfere with the impugned judgment

of the High Court. The High Court is requested to

decide First Appeal No.59 of 2016 and First Appeal

No.68 of 2016 after hearing the parties keeping in view

the observations as made above. The appeals are

disposed of accordingly.

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

..........................J. NEW DELHI, ( NAVIN SINHA ) JULY 11, 2019.