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PETITIONER: THRITY HOSHIE DOLIKUKA

       Vs.

RESPONDENT: HOSHIAM SHAVAKSHA DOLIKUKA B

DATE OF JUDGMENT04/08/1982

BENCH: SEN, AMARENDRA NATH (J) BENCH: SEN, AMARENDRA NATH (J) PATHAK, R.S.

CITATION:  1982 AIR 1276            1983 SCR  (1)  49  1982 SCC  (2) 544        1982 SCALE  (1)608

ACT:      Law  relating  to  minor  child-custody  of  the  minor daughter aged 11 years, whether to be with the mother of the father Duty  of the  Court-Whether it  is obligatory  on the part of  the Court  to interview  the minor for ascertaining the minor’s wishes and implement the same-Parsi Marriage and Divorce Act,  1936, Sections  49; Guardians  and Wards  Act, 1890 : Sections 7 to 17.

HEADNOTE:      The appellant  and the  respondent belong  to the Parsi community and  they were  married  in  Bombay  on  the  27th December 1960  according to the rights and ceremonies of the Zoroastrian religion  and custom.  A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name  is  Gospi  and  aged  11  years.  Irreconcilable difference and embittered relationship between the appellant and the  respondent had  led to the filing of Suit No. 14 of 1979. by the appellant mother, for judicial separation.      In the several applications made by the parents for the custody of  the child, the learned judges of the High Court, before whom  the said  applications came  up  for  disposals interviewed the  children separately  and in the presence of the parents  and passed  appropriate and  equitable  orders, keeping in  the forefront the welfare of the minor children. The boy bas now become a major as per the Parsi Marriage and Divorce Act  and tho question of his custody does not arise. The custody  of the  minor daughter  was ultimately given to the father  as per  the order  of tho  Division Bench of the Bombay High Court dated October 16,1981, Hence the appeal by the appellant  mother, after  obtaining Special Leave of the Court.      Allowing the appeal, the Court. ^      HELD: 1.  It is well settled 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, 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. [79 B-D]

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    Rosi Jocob  v. Jacob  A. Chakrammakkal  [1973] 3 S.C.R. 918 followed. H      2:1 There  is no duty or obligation cast on the part of the Court to interview the minor for ascertaining the wishes of the minor before deciding the question 50 of the  child custody under section 49 of the Parsi Marriage and Divorce Act, 1936. [81 F-G]      2:2 It  is true that Section 17(3) of the Guardians and Wards Act,  1890 speaks of the consideration by the court of the preference  of the  child "if the minor is old enough to form an  intelligent preference".  The instant  case, is not one under the Guardian of Wards Act 1890. [83 B-C]      2:3 However, there cannot be any manner of doubt as the Court’s power of entertaining any minor for ascertaining the wishes of  the minor,  if the Court consider it so necessary for its  own  satisfaction  in  dealing  with  the  question relating to the custody of the minor. [83 D]      In the  facts and  circumstances of the case, the minor is not  fit to  form an  intelligent preference which may be taken into consideration in deciding her welfare. The report of the  Social Welfare  Expert records  that the interviews, the minor  girl faced before the several judges 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 is bound to have effected the sensitive mind of the minor girl. 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 embarrassing 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 ensure 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. Therefore, 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. [83 E-H, 84 A-D]      3:1  on   a  consideration   of  all   the  facts   and circumstances of  the case and bearing in mind the paramount consideration of  the welfare  of  the  child,  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, which is admittedly a good institution.      3:2 Home  influence plays  a  very  important  role  in shaping the  life of  every child. Influence of a happy home where the  children are  brought up  under the  affectionate guidance of their parents and other relations, all concerned with the  welfare of  the children  no  doubt,  enables  the children to  lead  a  normal  healthy  life  and  materially contributes to  their welfare. In a happy home, the children are free  from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and  welfare are  properly looked  after by  their parents. In  such a  case, the  court is normally not called

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upon to  interfere  and  to  consider  the  welfare  of  the children and  the welfare of the children is well taken care of by their parents whose primary concern is to 51 see their  interest and  welfare. It  is also  no doubt true that the children who stay at home with their parents and do not go  to boarding school may also be very well disciplined in life and may have a very healthy happy and normal growth, while staying  at home.  Therefore, in  the interest  of the children whom  they have  brought into existence and who are innocent, every husband and wife should try to compose their differences which  are bound  to be  in any house. Even when any husband  and wife who are not in a position to reconcile their differences  and are  compelled to  part, they  should part in a way as will cause s least possible mischief to the children. [84 E-H, 85 H, 86 E]      When the  atmosphere in  a house  vitiated and rendered surcharged with  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 fo each of whom she has great affection, the healthy  and normal  growth of  their  child  is  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 or  serving the  interest and  the 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 affect her tender mind. [88 C-E]      3:3 The  question of  the custody  of  the  child  must necessarily be  considered from  the only  view point of tho welfare of  the child. The person to whom tho custody of the child has  to be entrusted will necessarily be answerable to the school  for payment  of all  charges and expenses of the child and  also in  relation to  any matter  concerning  the child in her school life. [89 D-E]      In the  instant cases,  it is  clear that the father is not inclined  to allow  the   child to  remain in a Boarding institution, If  the custody be left to him, the - father iq view of  the disinclination  to allow the child to remain in the Boarding  - institution,  may be in a position to create difficulties for  the child for remaining in the institution by  non-payment  of  fees  or  otherwise.’  The  ’father  is obsessed, with  the idea  of obtaining  exclusive control of the daughter  and keeping  the -  daughter with  him in  his house. [89 B-F] F      It is not in dispute and it cannot be disputed that the mother has a great deal of affection for her daughter in her heart and  to serve  the best  interest of  the daughter the mother is  prepared to  make any necessary sacrifice for the welfare  of   the  daughter.  The  mother,  at  considerable expense, had put her in Kimmins Boarding School, Panchghani, which is  recognised to  be a  very good institution She has been paying  for all  the expenses of the daughter at the G’ school. She  has steady  income out  of which  she is  in  a position to  meet all  , the expenses of her daughter at the school. The  mother also  does not suffer from any obsession regarding posession  of the  girl and she wants her daughter to lead  a healthy  normal life  essential  for  her  proper growth and  development. The mother is very anxious that the child should continue to remain in the Boarding; School. The girl now  aged about  11 years,  is reaching an age when she

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will need the guidance of the mother. Therefore, the custody of the girl should be given to the mother. [89 F-H, 90 A-B] 52

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3032 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  16th October,  1981 of  the Bombay  High Court in Appeal No. 102 of 1981.      V. S.  Desai, B.  R. Agarwala  and M.N.  Shroff for the Appellant.      M C.  Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and T. Sridharan for the Respondent.      The Judgment of the Court was delivered by      AMARENDRA NATH SEN, J. Whether the father or the mother should have  the custody of their minor daughter now aged 11 years, is the question which falls for consideration in this appeal by special leave granted by this Court.      Irreconciliable differences  between the father and the mother and  embittered relationship  between  the  two  have resulted in  a sad  protracted litigation. Unfortunately, in the various  proceedings in Court between the father and the mother, the  child had  become the  central figure  and  the child  had   appeared  in   Court  on  occasions  for  being interviewed by  the learned Judges of the Bombay High Court. The child, it appears, is quite bright and rather sensitive. The unfortunate litigation between the father and the mother appears to have badly affected the normal and healthy growth of the  child. The  situation appears  to be  all  the  more unfortunate, as  the father  and the  mother both  love  the child dearly  and the  child is fond of both her parents. It is, indeed,  said that  the parents  who are  both genuinely fond of their daughter and have her welfare in their hearts, could not  compose their differences and work out a solution which would  be most  conducive to the welfare of the child. The responsibility  has, therefore,  devolved on  the Court. The task  of the Court is indeed difficult and delicate. The Court in  this case,  is  concerned  with  a  human  problem affecting the  future of  a little  girl. We  feel that in a case of this nature a decision of the Court however, may not succeed in  solving the  real problem  and in  achieving the desired goal.  Anyway, as  all attempts  by Courts  to bring about an  agreed solution of the problem to the satisfaction of all  concerned, have  failed the  Court must  proceed  to discharge its  duty, however  painful and delicate that task may be. 53 We shall  now proceed  to state  some  of  the  broad  facts relevant A for the purpose of the disposal of this case.      The appellant  who is  the mother  of the child and the Respondent who  is the  father of  the child, both belong to the Parsi  Community and  they were married in Bombay on the 27th December,  1960 according  to the rights and ceremonies of the  Zoroastrian religion  and custom.  A son was born to them on  the 6th of May, 1965. The son who is called Shiavux is now  more than  16 years  old. A daughter was born to the appellant and  the respondent  on the  18th April, 1971. The daughter is  named Gospi  and she  is now nearly 11 years of age. In  this appeal  we are  concerned with  the custody of this girl Gospi. The appellant who is the mother and whom we shall describe  in the  judgment either  as the appellant or the mother,  has been  in the employment of Tatas for a long

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time and she now works as a confidential secretary to one of the Directors  and gets  a salary of Rs. 2500 per month. The respondent obtained  training in  architectural  engineering and had obtained a diploma. The respondent had also obtained a licence  from the authorities to enable him to function as an  architect.   The  respondent  had  worked  with  various concerns from  time to  time and had also worked at times of his own  as an  architect. The  respondent at present owns a taxi which  he plies himself. According to the respondent he makes a  gross earning on average of some- thing between Rs. 125 to  Rs. 150  per day,  by plying  his  taxi.  After  the marriage  on   27.12.1960  the   respondent  set   up  their matrimonial home  in Mount  Villas at Bandra, the tenancy of which stood  in the  name of the appellant. As the appellant is an  employee of  Tatas, the tenancy was granted to her by Ratan Tata  Trust which  owns the  premises. It appears that unfortunate differences  arose between the appellant and the respondent and  the appellant  left the  matrimonial home on 21.5.1978. It  is indeed  unfortunate that the parents could not reconcile  their differences at least in the interest of their children  and on  21.4.1979 the appellant filed a suit being suit  No. 14  of  1979  for  judicial  separation.  On 24.4.1979 the  appellant in  her suit  No. 1411979  made  an application for  getting the  custody of  both the  children i.e. the  son Shiavux  and daughter Gospi. By consent of the parties on  27.4.1979, an  interim order  was passed  on the said application and the said order is to following effect:           "The children  to spend  the week-ends  commencing      from Saturday  the 28th  April 1979 with the Petitioner      and 54      stay over-night  with the  petitioner on  Saturdays and      Sundays.  Defendant   to  send   the  children  to  the      Petitioner -  at 10.00 a.m. On Saturdays. Petitioner to      return the  children to  the defendant  by 9.00 a.m. On      Mondays.           Liberty to the Petitioner to take the children out      of Bombay  to  Lonavla  or  Matheran  for  a  fortnight      commencing from 5th May 1979 and ending 20th May, 1979.      Petitioner undertakes  through her  learned counsel  to      bring the  children back to Bombay on 20th May 1979 and      to give  written intimation  thereof forthwith  to  the      Prothonotary and  Senior Master.  The Petitioner  shall      return the  children to  the defendant on 21st May 1979      by 9 a.m.           Liberty to  the defendant to take the children out      of Bombay  to Matheran  or Lonavla  from 22nd  May 1979      till 3rd  June 1979  and to  bring the children back to      Bombay. on or before 3rd June.           Should however  the defendant  not desire  to take      the children  out of Bombay from 22nd May till 3rd June      1979, the  Petitioner shall  be at  liberty to take the      Children out  of Bombay  during this  period and  shall      return the  children to  the defendant  by 9.00 a.m. On      4th. Should  however neither  the  petitioner  nor  the      defendant be  in a position to take the children out of      Bombay from  22nd May till 3rd June, the children shall      remain with the defendant and the petitioner shall have      week-end access to the children in the manner stated in      clause (I) above.           In the event of the defendant being unable to take      the children out of Bombay from ’2nd May, the defendant      shall give written intimation of his liability to do so      to the  petitioner’s advocate  on or  before 15th  May,      1979 in  which event the petitioner shall be at liberty

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    to keep  the -  children with  her either at Lonavla or      Matheran till  3rd  June  1979  and  shall  return  the      children to  the defendant  by 9.00  a.m. On  4th  June      1979.           This arrangement shall be till 15th June 1979.            Liberty  to the Defendant to take the children to      Undwada and Shirdi between 4th and 8th June. 1979". 55      The application  came  up  for  final  disposal  before Lentin, J. The learned Judge interviewed the children in his chambers before passing his order on the said application on 28.6.1979. As  this happens  to be the first order passed by the Court  after interviewing  and speaking to the children, it will be appropriate to set out the order which reads:           "I have talked to the children in my chambers. The      boy  completed  14  years  of  age  and  the  girl  has      completed 8  years  of  age.  I  have  found  both  the      children  extremely   intelligent  and  sensible.  Both      appear  to  be  distressed  at  the  present  state  of      acrimony between  their parents.  Both  have  expressed      their desire  to spend  their time  with  each  of  the      parents since  it is  not possible for them, in view of      the-present state  of affairs  to spend their time with      both the parents at the same time.           After having  talked to  the  children  and  after      having ascertained  their wishes,  I pass the following      order for access in the interest of both the children.            The father shall have access to the children from      Monday to  Friday and the mother shall have access to .      the children  during the  week-ends, viz.  Saturday and      Sunday.           The children  shall be  sent by  the father to the      mother  directly   from  School  on  Saturday  and  the      children shall  remain  with  the  mother  till  Monday      morning when  the mother  will leave  the  children  or      arrange for them to be p left at the school.           The mother  shall have  access to  the children on      public holidays  from 10.00  a.m. Of  such holiday till      the following  morning when  she will  leave or arrange      for the children to be left at the school.           It is  clarified that  though Monday  the 27th  of      August, 1979  is a  Public  Holiday  (Navroz  Day)  the      children shall  spend the  27th August  1979  with  the      father. The  mother shall  return the  children to  the      father’s residence  by 11.00  a.m. On  the 27th  day of      August 1979," 56 Though the  order passed  by the  learned Judge  was in  the circumstances a very proper order passed in expectation that the order  would be  worked out smoothly to the satisfaction of all concerned and would serve for the time being the best interest of  the children.  Yet, as  subsequent events go to indicate, the  order failed to achieve the purpose mainly in view of  the attitude  of the  father who was not willing to part with  the children  and to  allow them to stay with the mother. It  appears that  the father had made an application for variation  of the  order passed by Lentin J. alleging in the petition that the children were not willing to live with their mother  on Saturdays  and Sundays  as ordered  by  the Court. It  further appears that no further order was made on the said  application of  the father.  A copy  of this order unfortunately does  not form part of the records. There does not, however,  appear to  be  any  dispute  that  Mehta,  J. disposed of  this application after speaking to the children in chambers on 10.8.1979.

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    On 24.4.1980,  the appellant  took out  chamber summons for an  order against the respondent for allowing her access to the  minor children Shiavux and Gospi by having them with her from  16th May,  1980 to 15th June 1980 and for half the period  of   each  subsequent   school/college  vacation  in addition to  having them with her on week-ends and holidays, as the  respondent had  refused to  give such  access to the appellant. Agarwal,  J. who  heard the chamber summons spoke to the  children  alone  in  his  chambers  and  passed  the following order on 2.5.1980.           "During the current Summer Vacation beginning from      15th April  1980 and  ending on  15th  June,  1980  the      children are  already with  the father from 15th April,      1980 and  they will  continue to  live with  the father      till 14th  May 1980.  On 15th  May 1980 the father will      hand over  the children  to their  mother and from 15th      May 1980  till 15th  June 1980 the children will remain      with their  mother. On  15th June  1980, she will bring      back the  children to  the house  of their  father. The      rest of  the arrangement  between the  parties  as  per      order dated 28th June, 1979 will continue.           It may be noted that I have ascertained the wishes      of the children before passing the present order.           Liberty to the mother to take the children outside      Bombay. if she so desires. 57           The present arrangement of the parents sharing the      company of the children during the vacation to continue      in the  coming October  and December  vacations on  the      basis of  the children remaining with the father in the      first half of the vacation and with mother in the other      half.           This arrangement  of sharing  the company  of  the      children during the vacation will also apply for coming      years pending  the hearing  and final  disposal of  the      suit.           It  is  clarified  that  the  order,  whereby  the      children go  - to their mother every week end, will not      be effective during the vacation period as the children      for the  first half of the vacation will be exclusively      with the father and the other half exclusively with the      mother.           Chamber Summons absolute accordingly with no order      as to costs." D It may  be  mentioned  that  the  daughter  Gospi  had  been admitted to Carmel Convent High School in the K.G. Class and she had  been studying in that School. Shiavux was a student of St.  Anne’s High  School. It  appears that on 1 5.6.1980, the Respondent  without  informing the appellant and without her knowledge  or consent  removed Gospi from Carmel Convent High School  and put  her in  St. Anne’s High School. On the 20th June,  1980 the  appellant made  an application  in her suit for  an order  for custody of her two children and also for an  order that  the child Gospi be forthwith . . removed from St.  Anne’s High  School and  be put in Carmel Con vent High School.  The said application was disposed by Kania, J. on the  9th of  July 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the following order:           "This is  a petition  for the  custody of  the two      minor children  and for the decision of the question as      to whether  the minor  daughter Gospi should be removed      from St. Anne’s High School where she has just been got      admitted by her father. As far as the question of final      custody is  . concerned,  it appears,  particularly  in      view of  the orders  passed earlier  by Lentin  J.  and

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    Agarwal, J. that that question can be more conveniently      decided when  the suit is disposed of. This position is      accepted by both the parties, 58           As far  as the  question of  change of  school  is      concerned,  it   is  regrettable  that  the  respondent      husband has  changed the  minor’s school from Apostolic      Carmel Convent  High School  to St. Anne School without      previously informing  the petitioner  as he should have      done. However,  after talking to the child, I find that      she is  anxious to  continue . in St.. Anne’s School at      present. Moreover,  she has  already been  admitted  to      that school.’  In view  of this I see no reason why the      respondent should  be directed  to remove  her from St.      Anne’s School  and to  try to  get her  re admitted  to      Carmel Convent  High School.  If the  child is not very      happy in  the new  school i.e.  St. Anne’s  School  the      question  of   changing  her  school  and  getting  her      admitted  in   Carmel  Convent   High  School   can  be      considered at the end of the academic year. No order as      to costs." On 9.9.1980,  the Respondent  filed a  contempt  application against the  appellant complaining  of the  violation of the order of the Court in the matter of handing over of the girl Gospi to  him. The  said application  of the  respondent was disposed of  by Lentin,  J. On  the 22.9.1980.  The  learned Judge talked  to the children together and also individually and it  appears that  the learned  Judge had  a fairly  long conversation with  the girl  Gospi for  about 40 minutes The learned  Judge  thereafter  passed  an  order  on  the  said contempt application  of the  respondent  to  the  following effect;           "I  have  talked  to  the  children  together  and      individually. From  my conversation  with the  daughter      (aged 9)  which extended  to well nigh 40 minutes. I do      not think  that  she  has  either  been  ’brainwashed’,      ’tutored’ or  ’pressurised’,  into  not  going  to  the      father. She  is  undergoing  a  tremendous  mental  and      emotional  upheaval  which  finds  her  bewildered  and      totally unhappy  at the increasing acrimony between her      parents. She  desperately needs  her mother  and cannot      bear to  be parted from her and it is not mere childish      pique, or  ’brainwashing’ or  ’tutoring’ that is behind      it. I  am aware  that normally a parent is given access      to his or her child. However, in this case, I fear that      if this  little girl  who is  mentally and  emotionally      disturbed, is compelled to go to her father against her      wishes,. the  consequences on  her well  being and  her      mind in  its present  state are predictable and will be      disastrous. 59           Her  conversation  with  me  did  not  reveal  any      intention A  on the part of the mother to want to flout      my order  of 28th  June, 1979 as urged on behalf of the      father. If  at all,  it showed  some resentment  on the      child’s part  against the  mother for  trying to induce      her to go to her father against her will. The husband’s      contention  that  the  wife  should  have  applied  for      modification of  that order, does not take into account      (i) that  she was  trying to persuade the girl to go to      her father,  (ii) that  this at  best  is  a  technical      breach, and  (iii) that  confining the  wife  to  civil      prison, or  otherwise punishing her, would in this case      be no  solution to  what is  basically a human problem,      more so  when looked  at from the view of the child who

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    is intelligent enough to speak up for herself and whose      interest   and    well   being    must   be   paramount      consideration.           Taking  all   the  facts  and  circumstances  into      consideration, I  pass no  order on  the motion with no      order as  to costs.  I suspend  my earlier  order dated      20th June, 1979 to the extent that it gives the husband      access to  the girl from Mondays to Fridays and clarify      that until  the disposal  of the suit which, I am told,      is  ripe   for   hearing,   the   mother   shall   have      uninterrupted access to the girl and shall not be bound      to send  the child  to the father against the wishes of      the child.  For the  mental and emotional well being of      his child,  the husband  should in good grace make this      sacrifice. It is further clarified, if clarification is      at all necessary, that the implication of this order is      that the  husband shall  not, until the disposal of the      suit, visit the girl at her school, for such visits she      dreads, resulting  in spells  of nausea  and black-outs      and which  visits she  finds upsetting  and humiliating      before her  friends before  whom she naturally wants to      maintain the  facade  that  all  is  well  between  her      parents." .. . . .      Against the  said order  of Lentin,  J. the  Respondent filed an  e appeal.  During the  pendency of the appeal, the suit filed  by the  appellant and the counter claim filed in the suit by the respondent came up for final hearing. It may be noted  that in  the counter claim filed by the respondent in the  said suit  of the appellant, the respondent had made certain allegations  against the  appellant. On 10. 11.1980, the suit  and the  counter claim  were disposed  of. By  the decree passed  in the  suit filed  by the appellant. divorce was granted on the 60 ground of  desertion of  the appellant and the allegation of cruelty made  by the  appellant  against  the  husband,  the respondent, was  withdrawn by  the appellant. The respondent had also  withdrawn all  the allegations  made  against  the appellant and the decree for divorce was passed in favour of the appellant,  as already  noted, only  on  the  ground  of desertion. A  consent order  was passed with regard to other reliefs and  under the consent order, the appellant got back her flat  in Mount Villas from which she was earlier ousted. The appeal  filed by  the respondent  against the  order  of Lentin J.  dated 22-9-1980  was also  with drawn, and it was agreed that the question of custody of the children would be decided by  the Court  on a petition for custody to be filed by either of the parties. On 3-12-1980, the respondent filed a petition  for custody of. both the children. Since the son Shiavux would complete 16 years of age is May, 1980, and was outside the  jurisdiction of  Parsi Matrimonial  Court,  the appellant could  not  resist  the  respondent’s  prayer  for custody  of   Shiavux  and   the  appellant   contested  the respondents prayer  for custody  of daughter Gospi. The said custody petition  of the  respondent came  to  be  heard  by Diashaw Mehta,  J. and  the learned  Judge passed  an  order directing the  custody of  the children  to be  given to the father.  It   is  desirable   to  set  out  the  following,, observations of the learned Judge while passing his order on the custody application. The learned Judge has observed:           "I  have   interviewed  both  the  minor  children      individually and  also in  the presence  of each of the      parents. I  have also  talked to the petitioner and the      respondent in  the presence of the children. I consider      both the  petitioner  as  well  as  the  respondent  as

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    persons capable  of looking  after the welfare of their      children. The  only hurdle in the way of the respondent      was that  she was  not available to the minor Gospi for      most of the day after the child returned from School at      about 1.00  p.m. and  tilt 7.00  p.m. The  minor during      this period  was looked  after by  Mr. and Mrs. Kotwal.      This, to  my mind is an unfortunate situation. However,      benevolent, hospitable and kind the neighbours be, I do      not see  why the child should grow up on the charity of      neighbours, particularly when her own kith and kin were      available,  especially   her  brother   Shiavux.  I  am      informed that Shiavux and Gospi have not met each other      for the  last six  months.  I  do  not  know  how  this      situation has been allowed to arise, but I can only say      that it is most 61      unfortunate. Both  the brother and the sister appear to      be A fond of each other and have expressed their desire      to live  together. I  would have  willingly  given  the      custody of  the minor  Gospi to the mother, but for the      fact that  she is  not available  to the minor for long      hours of the day and again the child will be left to be      looked  after   by  neighbours   or  servants.  In  the      petitioner’s house-hold  there are three sisters of the      petitioner who  can look  after  the  welfare  of  both      Shiavux and  Gospi in the absence of the Petitioner. At      pointed out  earlier, one of the sisters is a qualified      teacher  and  can  look  after  the  education  of  the      children.           At this  stage, I  may advert  to the  conduct  of      Gospi during  the forty-five minutes that she was in my      chamber.  Almost throughout  this  period,  Gospi  kept      crying or  sobbing or  whining although  there  was  no      provocation to  do so,  and this  was so  even  in  the      presence of  her  mother,  the  Respondent.  The  child      appeared to be nervous and kept biting her nails. I had      an occasion  to meet Gospi and Shiavux about a year ago      when a Chamber Summons taken out by the Respondent, was      heard by me. At that time during my talks with both the      children, I  found them  to be  intelligent, exhuberant      and confident.  They expressed  a desire  to live  with      both the  parents. The  situation has changed radically      today. Gospi  has developed  an aversion for the father      and expressed  her desire  to live  with the mother. On      three different  occasions she  stated that she was not      tutored and  brain-washed. It  appears to  me that  the      child is  under considerable  mental  pressure  and  at      present she  is not  a normal child. It is important to      create an atmosphere where the child will live a normal      and healthy life. It will only be under such conditions      that the  child’s  progress  at  School  will  improve.      Between September, 1980 and today the child’s education      has been  neglected for some reason and this is evident      from the  fact that  the child  failed in  October 1980      Examination in  three subjects.  Normally I  would have      given preference  to the  desire of the child and would      have acceded  to her  request.  In  the  instant  case,      however, I  do not  think that it is in the interest of      Gospi to  permit her  to remain  in the  custody of the      Respondent. The  child has been sadly neglected. If the      child is  to return  to normalcy,  it is very necessary      that she  should be  returned to  the  custody  of  the      father. 62      Such an  arrangement will  permit both  the brother and

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    the sister  to grow  up together and it will allow both      of them  to take comfort and counsel from each other. I      consider this arrangement to be in the interest of both      the children Shiavux and Gospi.           I, therefore,  order that  both the minors Shiavux      and Gospi  will remain in the custody of the Petitioner      till such  time as  they reach the age of majority i.e.      16  years.   Both  the  minors  will  remain  with  the      Petitioner during  the course  of the  week  i.e.  from      Mondays till  Fridays. The  Petitioner  will  take  the      children on Saturday moorings at 9.00 a.m. to the house      of the  Respondent and  leave them with her till Sunday      7.00 p.m.  when the  Respondent will hand over both the      minors back  in the  custody of  the Petitioner. During      the School  vacations, half  the period of the vacation      will be  spent by  the children with the Petitioner and      half with  the Respondent  by mutual arrangement. There      will be no order as to costs of the petition .           Mrs. Ponda states that this order be stayed as her      clients desire  to proceed  further. This order will be      stayed till 9.3.1981". The appellant  preferred  an  appeal  on  6.3.1981  and  the appellant also  applied for interim stay of the order passed by Mehta,  J. It appears that an ad-interim stay was granted by the  Division Bench.  On the  20.3.1981 a  Division Bench consisting of  Madon and  Khurdukar JJ. disposed of the said application in the following terms:           "Pending the  hearing and  final disposal  of  the      appeal, the  order dated  February  19,  1981  appealed      against stayed  as far as it relates to the minor Gospi      alone.           Until the St. Annes High School in which the minor      Gospi is  at present  studying closes  for  the  summer      vacation, the  Respondent to  be entitled  to take  the      child to  his residence on Thursdays from 9 a.m. till 8      p.m.           The respondent,  who is present in Court, gives an      undertaking through  his advocate  to return  the child      Gospi to  the appellants  residence each  Thursday by 8      p.m. 63           So far as the school vacations are concerned the A      appellant to  keep the  child Gospi  with her  for  the      first half  of each vacation and the respondent to keep      the child  for the  second half  of each  vacation. The      respondent to take the child to his residence by 9 a.m.      On-the first  day of  the second  half of each vacation      and to  return the  child by  8 p.m. On the last day of      the second half of each vacation.           The  respondent  who,  as  mentioned,  earlier  is      present  in   Court,  through  his  Advocate  gives  an      undertaking to  take the child Gospi to the appellant’s      residence and leave her there by 8 p.m. On the last day      of the second half of each vacation.           We may  record that we had seen the child Gospi in      Chambers on  March 10,  1981 and had found her to be an      extremely bright  and intelligent child. We may further      record that  the child stated that she did not have any      aversion to  spend the day with her father, namely, the      respondent, but  was greatly  apprehensive that  if she      did so,  she would not be allowed to return her mother,      namely, the  appellant, with whom she wanted Lo stay or      that some  application would  be made  to the  Court on      behalf  of  the  respondent  for  the  purpose  of  not      returning the  child to  the appellant  but to keep her

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    with him.           Notice of  Motion made absolute in terms of prayer      (c) also  and the  above directions with respect to the      Respondent’s access  on  Thursdays  during  the  school      terms and  the order  with respect  to the  sharing  of      school vacations  also to apply if the child Gospi gets      re-admission  in  the  Apostolic  Carmel  Convent  High      School from  the next  academic year  for the  . school      terms and  vacations. If  the child  Gospi does not get      re-admission  in  the  Apostolic  Carmel  Convent  High      School but continues in the Anne High School, the above      directions with  respect to  the Respondent’s access on      Thursday. during  the School  terms and  the sharing of      vacations to other school terms and vacations.           Costs of  this Notice  of Motion  will be costs in      the appeal". 64 As the  respondent had  not returned Gospi to the appellant, in terms  of the  order and  the undertaking  given  by  the respondent to  the Court,  the appellant  on 3.4.1981 orally applied to the Division Bench consisting of the same learned Judges viz.  Madon and  Khurdakar, JJ.  complaining  of  the breach of  the undertaking  and on  the said application the Court passed, inter alia, the following order:           "There  were   some   allegations   and   counter-      allegations made  by the  parties against  each  other,      into which  we do  not desire to go. We, in the privacy      of our  chambers, talked  to the  child. We also talked      separately to both the parties. We have also heard both      counsel. An  unfortunate position  in that  the child’s      final examination  in the  Vth standard in which she is      studying commences  tomorrow and  will finish  on April      15, 1981.  Purely bearing this circumstance in mind, we      permit the  child to continue to be with the Respondent      until April  16, 1981. On that day we will give further      directions in  the matter.  We are  passing this  order      purely in  order not  to make the child travel back and      forth between the residences during her examination.           Mrs. Ponda  on behalf of the appellant states that      the  child’s  textbooks,  exercise  books,  the  school      uniform, etc. are at the appellant’s place of residence      and that  the appellant  will hand  them  over  to  the      Respondent. The  Respondent will collect these articles      from the appellant’s residence by 4 p.m. today.           The matter  will be on Board on April 16, 1981 for      giving further  directions. The  parties and  the child      Gospi will  remain present in Court, and the Respondent      will bring the child to Court on that day.           We also  restrain, pending  the giving  of further      directions, the  respondent, his  servants, agents  and      family members  from taking  the  child  Gospi  outside      Bombay." on 16.4.1981,  the matter  came up  again  before  the  same division Bench for final orders and the Court was pleased to pass the following order: 65           "Today in  our Chamber  we have heard both learned      advocates as  well as  the  Respondent  who  wanted  to      address us.  In course  of arguments  we pointed out to      Mr. Deshmukh, the learned Advocates for the respondent,      that when  we had  talked with the son of the marriage,      Shiavux, as  also with  the daughter  of the  marriage,      Gospi, on  March 10,  1981 we found Shiavux using semi-      legal pharaseology  and   words, while  we found  Gospi      speaking naturally  like any  other bright child of her

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    age. We  further pointed  out that  when we  had talked      with the  child Gospi  on April 3, 1981 in our Chamber,      we had  found her  using the  same type of pharaseology      and words  similar as  those used  by  Shiavux  and  in      speaking of  various family matters almost echoing what      Shiavux had said. When we put this to Mr. Deshmukh, the      learned advocate  for the  Respondent,. he replied that      that was  because time  and again  there was talk about      this  case  in  the  Respondent’s  house-hold.  In  our      opinion, such  talks taking  place in the presence of a      child cannot  be conducive  to  the  happy  or  healthy      psychological growth  and development  of a  child. Mr.      Deshmukh,  the  learned  Advocate  for  the  Respondent      further made  a request  to us that though on March 20,      1981 we  had directed that Gospi should spend the first      half of  the vacation  with the appellant, that part of      the order  should be  varied  because  Gospi  had  just      finished her  examinations yesterday  and had been till      then in  the grip of the examination fever and not able      to go  about with  the respondent,  and, therefore, the      respondent should  be permitted  to keep  Gospi for the      first half  of the  vacation. At  this, Mrs. Ponda, the      learned Advocate  for the  appellant, pointed  out that      during the middle of her examination the respondent had      taken Gospi  to some  person at  Goregaon. Mr. Deshmukh      stated that  the said  person was  known as ’Maiji’ and      the said  person stayed  at  Goregaon  Tekdi  and  that      several persons visit her, for they consider her a holy      woman. He  further stated  that Gospi  was taken to the      said Maiji  to seek her blessings. When we inquired, we      were informed  that Gospi  had also  been taken to said      Maiji on the 2nd day of April when she was staying with      the respondent  in pursuance  of order  dated March 20,      1981, that  is, before  we had  talked to  Gospi in the      privacy of our chamber on April 3, 1981. 66           Mr.  Deshmukh   also  applied   that   we   should      reconsider our order passed on March 20, 1981 in so far      as it related to re-admission of Gospi in the Apostolic      Carmel Convent  High School  and permit her to continue      in the St. Annes High School, which order we had passed      after hearing  elaborate arguments  on  the  point.  In      support of this application Mr. Deshmukh stated that if      we were  now to  talk with Gospi we would find that she      has now  changed her  mind and  does not want to rejoin      the Apostolic Carmel Convent High School. Assuming this      is so,  this fact  speaks for  itself.  We,  therefore,      reject the application also.           In these circumstances, we feel that this is a fit      case in  which a  home-study should  be directed  to be      made by  social welfare  expert to be appointed by- the      Court. For  this purpose  both parties  have agreed  to      deposit with the Prothonotary and Senior Master of this      Court a sum of Rs. 300 each. Accordingly, by consent we      direct that  each of  the parties will deposit a sum of      Rs. 300  with the  Prothonotary by 12 noon of April 18,      1981.           Further directions  with respect  to to  the home-      study and the social welfare expert by whom it is to be      conducted will be given by us in our chamber at 11 a.m.      On Monday, April 20, 1981. Meanwhile the appellant will      take the  child Gospi  with her  to her  residence.  We      reserve the  giving of  further  directions  about  the      party with  whom the  child will  spend the rest of the      vacation and  with respect  to the  access of the other

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    parent to the child. The further hearing of this matter      is adjourned  to 11  a.m. On  Monday, April 20, 1981 in      Chambers as part heard." On 20.4.1981, the Court appointed Mrs. Clarice D’Souza B.A., B. Ed., holder of a Diploma in Social Service Administration of the  Tata Institute of Social Sciences as a family expert to assist  the Court  in   discharging its  function in  the matter concerning, the child with the observations:           "Parties are  agreed that  every facility  will be      given to  Mrs. D’Souza  for her  to interview privately      the child  Gospi as also the parties themselves and the      relatives and neighbours of the parties if Mrs. D’Souza      desires to  interview them or any of them. Both parties      are further agreed 67      that Mrs.  D’Souza will be also at liberty to interview      the A  present as  well as  the former  teachers of the      child. The parties are further agreed that Mrs. D’Souza      if she thinks it necessary to do so, will be at liberty      to take  the child  and keep  her with  herself at  her      place for  such period  or periods, including overnight      stays, as  she thinks  it necessary,  to enable  her to      make a detached and fair report to the Court.           We may  mention that Mrs. D’Souza has stated to us      that she  does not desire any remuneration for the work      she may do in this connection. In our opinion, however,      it would  be unfair  to Mrs.  D’Souza who  in order  to      conduct this home study may have to travel from Colaba,      where she  stays, to  Bandara by  taxi to conduct these      interviews and may have to spend at times the whole day      in Bandara  and may, therefore, also have to incur some      other expenses  over her  meals or  refreshments. We do      not see  why Mrs.  D’Souza should  go out of pocket. We      will,  therefore,   decide  after   the  home-study  is      concluded the  amount  that  should  be  paid  to  Mrs.      D’Souza out  of  the  moneys  which  the  parties  have      deposited  with  the  Prothonotary  and  Senior  Master      mentioned above.  In the  first instance,  however,  we      direct the  Prothonotary and  Senior Master  to pay  to      Mrs. D’Souza  towards the  disbursement of the expenses      which she  will have  to incur, a sum of Rs. 300 out of      the aggregate sum of Rs. 600 deposited by the parties.           For the  present we  are adjourning  the matter as      part heard  in our  Chamber at 2.45 p.m. On Tuesday the      28th April, 1981 for receiving Mrs. D’Souza’s report if      it is  ready. On  that day in case the report is ready,      the parties  are agreed  that the  Court should  decide      whether the report should be treated as confidential or      should be  disclosed to the parties. In case the report      is not  ready on  that day, the parties are agreed that      this matter  should be  decided on  a date to which the      matter will  be further  adjourned for  the purpose  of      receiving the report and for deciding whether it should      be kept confidential or not.           Meanwhile the  child Gospi will continue to reside      with her mother, the appellant, and as mentioned in our      order dated  April 16,  1981 directions as to with whom      the child is 68      to spend  the rest  of the  vacation and  the right  of      access of the other parent to the child will be decided      by us  after receiving the report and after hearing the      advocates for the parties."      It appears  that the  minor daughter Gospi who had been living with  her mother  had been  missing from her mother’s

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place on  30.4.1981, resulting  in  a  great  shock  to  the appellant. On  the very  same day  the respondent applied to the Division  Bench consisting  of the  same learned  Judges with an affidavit stating that the child had come on her own to the  house of the respondent who had brought the child to Court to  surrender her and abide by the Court’s directions, as he  did not  want to  commit contempt of the Court. As on that date,  the appellant  was not  able to attend the Court because of  her illness  due to  the shock  of her not being able to  find Gospi,  the Court passed an order that for the time being  the child Gospi would go with the Respondent and stay with  him until  May, 1981  and on  that date the Court would give  further directions. On 13th May, 1981, the Court after considering  the report  of Mrs.  Clarico D’Souza, the family welfare  expert appointed  by the  Court, passed  the following order:           "In the  circumstances, set  out above,  we  would      have had  no hesitation  in directing  that  the  child      Gospi should  stay  with  her  mother,  the  appellant,      throughout the summer vacation. However, an unfortunate      thing is that the appellant is working in the Tatas and      therefore has to be away from home the whole day except      during week-ends,  while the respondent, who drives his      own taxi,  can always find time to contact Gospi in the      course of  the day  and lure  her away.  Bearing  these      factors in  mind, we  permit Gospi  to  stay  with  the      Respondent during  the vacation.  The respondent  will,      however, take  Gospi and  leave her  at the appellant’s      residence on  every Friday  at 8  p.m. and will collect      her from  the appellant’s  residence every  Monday by 8      a.m. during the vacation. In our opinion best thing for      Gospi would  be to go to a boarding school. However, we      are sure  that the  respondent would so poison her mind      against any  boarding school  as to  cause yet  another      psychological turmoil  and conflict  in her  mind. Mrs.      D’Souza’s report  has also  convinced  us  that  it  is      better for  Gospi that  she should be in Carmel Convent      High School rather than St. Annes High School, and that      part of the 69      order passed by us on March 20, 1981 will stand. During      the school  term the appellant will be entitled to take      Gospi to  her residence straight from the School, every      Saturday and  to keep  her with her and to leave her in      the School  on Monday  mornings. During the rest of the      days during  the school  term Gospi  will stay  at  the      respondent’s residence.  The above  directions will  be      operative during  - the  pendency  of  appeal  for  all      school terms and vacations." While passing  the said  order, the  Court in  its  judgment observed:-           "We have  very carefully  considered  the  matter.      Between the  two spouses  the person who in our opinion      would be  best suited to bring up the child Gospi would      be the  mother-namely, the  appellant. Gospi  is a girl      about 10  years old,  and she  needs  a  mother’s  care      guidance and  advice. The  appellant has  struck us  as      being refined, mature and has been holding a steady job      for the last twenty-one years and is at present drawing      a salary of Rs. 2,500 per month. She appeared genuinely      concerned with  the interest  and welfare of the minor.      On the  other hand,  it appears  that the respondent is      somewhat immature  and erratic, and has never been able      to pursue any particular vocation steadily, and appears      to labour  under a  sense of inferiority complex vis-a-

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    vis the  appellant. It  further appears  to us that the      custody of  the children  is more  a matter of prestige      with the  respondent and  is a weapon in his armoury to      hurt the  appellant with.  As we  had almost  on  every      occasion when  the matter was before us talked with the      child in  the privacy of our chambers, either before or      after passing  orders, we  found that when she was with      the appellant  she behaved as a normal and happy child,      but when  she was  with the respondent, her personality      had totally  changed and  she appeared  to be  under  a      strain." The Court further observed:-           "We find  that  Gospi  has  been  tutored  by  the      respondent to  tell a number of lies. According to what      she is  alleged to  have said  as set  out in  the said      affidavit, the  appellant beats  and ill treats her. At      no  stage   has  Gospi  ever  mentioned  this.  On  the      contrary, she  has always  expressed how very happy she      was with 70      her, the  appellant. Mrs.  D’Souza’s report  also bears      this out.  Another instance  is with respect to Gospi’s      version as  to what  happened in  Court on  April,  16,      1981. As  set out  in the said affidavit she is alleged      to have  told the  respondent that when her mother, the      appellant, came to take her away, she was screaming and      shouting and  vomited on  the Judge’s table and that in      spite of  that, her  mother,  the  appellant,  and  her      lawyer forcefully  took her under instructions from the      judges. It  is true  that when we told Gospi to go with      her mother  the appellant,  she whimpered for some time      and then  threw out  out-side the  chambers.  That  the      conflict between  the ,  two parents  has greatly upset      Gospi emotionally,  resulting in  spells of nausea, has      also been  noticed by  Mr. Justice  Lentin in his order      passed on September 22, 1980. Further, it is clear from      Mrs. D’Souza’s report that when the respondent had made      Gospi change  her school  and made  her give  up Carmel      Convent High  School and  put her  in  St.  Annes  High      School, she was in the habit of vomiting in that school      on the least provocation, and she only adjusted herself      in the  school when  she was  reassured by her teachers      that she  would go  back to  Carmel Convent High School      from the  next academic  year. After the initial fit of      vomiting,  Gospi   went  away   with  her  mother,  the      appellant, quite  happy and  content, and  of  her  own      accord she  got into the taxi along with her mother. We      were watching  from the  corridor outside our chambers,      as we wished to observe Gospi’s behaviour while she was      going home  with the  appellant, and in order to enable      us to  do so  we had  instructed that the appellant and      Gospi should leave the Court premises from the entrance      facing oval  Maiden. We  had also instructed one of our      PAs. to accompany them and to report to us, what is set      out in  the affidavit,  therefore, cannot  be  anything      else but  the tutoring  of Gospi  by the Respondent. We      have already  had occasion  to observe  in  an  earlier      order that  this child  who,  while  staying  with  the      appellant, was talking like a normal child, has started      using semi-legal  phrases,  which  she  was  not  doing      previously."      on the  9th of June, the Respondent made an application to the  Division Bench of the Bombay High Court for an order for modification  of the earlier order passed on the 20th of May, 1981 to the

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71 extent that the child Gospi should not be compelled to go to Carmel Convent  High School  but should be readmitted to St. Annes High  School. During  the pendency of this application the appellant on the 6th July, 1981 also made an application to the  Division Bench  for committal  of the respondent for contempt of  court for  violation of the order passed by the Division  Bench   on  the   20th  March,  1981.  Both  these applications came  up for hearing together on the 31st July, 1981 by  the Division  Bench consisting  of Madon and Sujata Manohar, JJ. The Division Bench dismissed the application of the respondent  for modification  of the  order  dated  20th March, 1981  and the  division Bench  passed an order on the contempt application  taken out by the appellant, committing the respondent to jail for a period of three months and to a fine of  Rs. 1000.  The Division Bench further directed that the custody  of the  minor daughter Gospi to be given to the appellant mother  pending final  disposal of  the appeal and the Division  Bench further ordered-"As observed in the both Mrs. D’  Souza’s report  and in  the order  of 13.5.1981 the best thing to do in order to restore Gospi to normalcy would be for  her to  be in  an atmosphere away from where she has been for  the last  almost two  years. The  appellant  will, therefore, be  at liberty  to place  Gospi in  any  boarding school of  the appellant’s  choice outside  Bombay. We  also make it clear that Gospi will spend all her School vacations with  the   appellant  only   without  any   access  to   or interference from  the respondent,  his servants  and agents including the  Respondent’s brother  and sister  or  any  of them". The Division Bench further suspended the execution of the punishment  imposed on  the respondent by the said order for a  period of  four weeks  from the  date of the order to enable the  respondent to  file an appeal in this Court, but refused to  stay the execution of the rest of the order. Mrs Sujata Manohar,  JJ. who delivered the judgment on behalf of the Bench,  considered at great length the various facts and circumstances  including  earlier  proceedings  between  the parties. As this judgment is under appeal, we do not propose to refer  to the  various findings  and observations made in this judgment  at any  length. Some of the observations may, however, be noted. The Bench observed:-           "A number  of our  brother Judges including one of      us (Madon, J.) who have had an occasion earlier to deal      with  the  matter,  have  consistently  considered  the      mother as  a mature  and responsible  woman who holds a      steady job  for the  last 21  years,  fetching  her  at      present a salary of 72      Rs. 2,500  per month.  She is  a mature  woman  who  is      genuinely and  deeply concerned with the welfare of her      child. All  these judges  have also  remarked that  the      husband is an unstable person. He is unable to hold any      job for  any length  of time.  He also  suffers from  a      deepseated inferiority  complex vis-a-vis  his  ex-wife      and for  good reasons.  From the  respondent’s  conduct      throughout this  litigation it is also apparent that he      has scant  regard for  the welfare  of his daughter. He      has, in order to score a point against his ex-wife, not      hesitated to  drag his  daughter from  court  to  court      resulting in his daughter’s near nervous breakdown." The Division Bench has also observed:-           As repeatedly  observed by a number of our brother      judges including one of us (Madon, J.) in the course of      these proceedings,  the girl  has  appeared  happy  and      normal when  she is  with the mother. She appears tense

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    and nervous  when she  is with  her father.  We have no      doubt  that   the  child   is  being   pressurised  and      terrorised  into   telling  lies  by  the  father.  The      father’s conduct leaves much to be desired." The Division Bench further observed :-           The respondent  and his  brothers and  sisters and      mother do  not have  any interest in the welfare of the      children. This  is borne  out by  the  fact  that  they      admittedly talk  constantly  in  the  presence  of  the      children regarding the present case so much so that the      children  have   picked   up   semi-legal   words   and      phraseology as noticed by the Court in various orders." Against this  judgment and  order of  the Division Bench the respondent (father)  filed in  this Court an appeal under S. 19(1)(b) of  the Contempt  of Courts  Act and  in  the  said appeal made  an application  for interim stay. On 15.8.81 on the said application for interim order, this Court passed an order staying  the operation  of the  Order of  the Division Bench in  so far  as the  same related  to the imposition of punishment of  imprisonment  and  fine  on  the  father  but directed that  the rest of the order of the High Court would stand. This Court further observed that the matter was of an 73 urgent nature  and the  appeal which  was pending before the High  Court  should  be  disposed  of  as  expeditiously  as possible. It  appears that  in pursuance of the order passed by the Division Bench of the Bombay High Court which was not in any  way affected  by the  order passed  by this Court on 5.8.1981, the  appellant had  got the  minor daughter  Gospi admitted into Kimmins Boarding School at Panchgani.      The appeal  preferred by  the appellant to the Division Bench of  the Bombay  High Court  against the  judgment  and order passed  by Mehta, J. on 19.2.1981 allowing the custody of the  minor daughter  to the  father came  up for  hearing before a  Division Bench  of the  High Court  consisting  of Jahagairdar and Ashok Modi, JJ. in October, 1981. It appears that in the course of the hearing of the appeal, the learned Judges had  expressed their  desire to  meet the minor Gospi and directed  that the  minor Gospi  should  be  brought  to Bombay to  enable them  to see  her. Accordingly,  Gospi was brought to  Bombay and was interviewed by the learned Judges at the  residence of  Modi, J.  on 9th October, 1981. We may note that  the learned Judges have recorded their impression of the  interview with  Gospi in a confidential note and had kept the  same in  a sealed  cover for  the benefit  of this Court in the event of any such occasion arising. On the 16th of October,  1981, the  Division Bench  dismissed  the  said appeal of the appellant with the following order:-           "For reasons  to be recorded in the judgment to be      delivered later, we dismiss this appeal challenging the      order dated  19th February,  1981 passed  by Mehta,  J.      This in  effect means  that the said order awarding the      custody of  the minor daughter Gospi to the Respondent-      father is  confirmed. However, in view of the fact that      the minor  daughter is  at this  moment studying  in  a      residential school  at Panchgani,  we direct  that  she      will not  be  brought  to  Bombay  till  at  least  3rd      November, 1981. The respondent father is hereby allowed      to spend  what is  called the  exit week-end  beginning      from 23rd  October, 1981  with daughter  at  Panchgani.      After the  child is  brought to  Bombay, the directions      contained in the order of Mehta, J. regarding the minor      daughter-spending her  week-ends and vacations with the      mother will  come into  force. However, it must be made      clear that if the school in which the minor daughter is

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    admitted is  working on Saturdays, the mother will take      the child with her after the school hours are over." 74 The Division  Bench delivered  its judgment on 3rd November, 1981.      Against this  judgment and  order of the Division Bench the mother  has preferred  this appeal  in this  Court  with special leave  granted by  this Court. In the present appeal this Court  passed an  interim order  on the  12th November, 1981 to the following effect:-           "Without expressing  any opinion  on the merits of      the question  regarding the custody of the child Gospi,      who is the daughter of the appellant and respondent, we      direct as  a matter  of interim  arrangement  that  she      shall be  allowed to  continue  her  education  in  the      Panchgani School where she is studying at present until      the end  of the academic year 1981-82. The parents will      be at  liberty to  meet the  daughter alternatively, in      accordance  with  the  rules  and  regulations  of  the      school. While  the girl  is in  school at Panchgani she      will be  at  liberty  to  write  letters  to  both  the      parents.           We are informed that the school will have vacation      from November  18, 1981 till about January 18, 1982 and      that the  girl wants  to  come  to  Bombay  during  the      vacation,  we   direct  that   during  the  forthcoming      vacation, she  will live  with the father for the first      half of  the vacation  and with  the mother  during the      second half  of the vacation. The father will bring the      child from  Panchgani to  Bombay on the commencement of      the vacation and the mother will take the child back to      the school  when the school reopens after the vacation.      At the  end of  the first  half of  the  vacation,  the      father will  deliver the  child to  the custody  of the      mother.           The appeal shall come up for hearing in the second      week of March, 1982. Liberty to the parties to apply to      this Court in regard to the custody of the child during      the pendency  of the  appeal, if  the  appeal  for  any      reason is  not disposed  of before  April 15, 1982. The      appeal (CA  1796/1981)  the  contempt  matter  will  be      tagged with this appeal.           We direct  that the school authorities will submit      to this  Court a report in the first week of March 1982      on the  progress and  performance of  the child, and on      the question  whether she  was  happy  to  be  away  at      Panchgani." 75      The appeal  came up  for hearing  before us  and on the conclusion of  the hearing  we  reserved  judgment  for  our consideration  of   the   matter.   However,   taking   into consideration the  fact that  the next term in the Panchgani School will  be commencing  shortly and there will also be a short recess  of the  School we passed the following further interim order  on 27.4.1982  pending  consideration  of  the matter and delivery of the judgment by us:-           "We direct that until further orders of this Court      the child  Gospi, the daughter of the appellant and the      respondent, shall  be allowed to continue her education      in the  Kimmins High  School at  Panchgani. The parents      will be  at liberty to meet the daughter alternately in      accordance  with  the  rules  and  regulations  of  the      School,  the   first  opportunity  of  so  meeting  the      daughter being  afforded to  the father. While the girl      is in  the school  at Panchgani, she will be at liberty

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    to write letters to both parents.           We are  informed that  the school  is in  vacation      from April  21, 1982  to May  12, 1982  and that on the      commencement  of  the  vacation  the  child  Gospi  was      brought home  and is  continuing there.  We direct that      she will live with the father for the first half of the      vacation, and  thereafter will  live  with  the  mother      during the  second half of the vacation. The child will      be handed  over by  the father  to the  mother  in  the      presence of the Vacation Judge of the Bombay High Court      on May  17, 1982  at an  hour convenient to the Hon’ble      Judge and  we request  the High  Court to  inform  this      Court of  the fact  of such  handing  over.  We  direct      further that  on the expiry of the vacations the mother      will take the child back to the School at Panchgani and      entrust her  to the  custody of  the Principal  of  the      School.           The Court  trusts that  each parent will promote a      sense of  respect and affection in the child’s mind for      the other  parent and  will  take  active  interest  in      persuading the  child to  settle down  in the school at      Panchgani, and  so promote  an atmosphere conductive to      the proper  development of  her personality, her mental      and physical  health and  the  enjoyment  of  emotional      security and well-being." Turning to  the merits of the appeal, we must observe at the outset that this case which is concerned with the welfare of a bright, sensitive 76 and innocent  girl of  about 11 years of age now, has in the peculiar facts  and circumstances  of the  case caused  us a great deal  of anxiety  and pain  and  we  have  given  very careful consideration to the matter.      Elaborate arguments  have been advanced from the bar on behalf of the respective parties.      Mr. Desai,  learned counsel for the appellant, has made the following submissions:-      1. In  deciding the  question of  custody of the minor, the Court  should be guided only by the consideration of the welfare of  the minor.  Mr. Desai  in  this  connection  has referred to  S. 49  of the  Parsi Marriage  and Divorce Act, 1937, S. 41 and 42 of the Indian Divorce Act, 1969, S. 26 of the Hindu  Marriage Act,  1957 and  S.  38  of  the  Special Marriage Act,  1956 containing similar provisions and he has strongly relied  on the decision of this Court in Rosi Jacob v. Jacob A. Chakrammakkal.(1)      2. In  the facts  and circumstances  of this  case, the father cannot  be considered  to be a fit person to have the custody of  the child and the custody of the child should be entrusted to  the mother. In support of this submission that the father  is not the fit person to be given the custody of the minor  child, Mr.  Desai has  referred  to  the  various proceedings between  the parties,  the orders passed thereon and the  observations made  by learned  Judges of the Bombay High Court  from time to time. Mr. Desai has argued that the father in  his self  interest to have the minor child on his side and  under his  control, has  been trying to poison the mind of  the  daughter  against  the  mother  for  whom  the daughter has  a very  great affection  with  the  object  of alienating the  daughter from  the mother without any regard to the  daughter’s sentiments  and without  appreciating the very great  damage that he is doing to the daughter and this act  of  the  father  has  caused  a  tremendous  amount  of psychological strain,  resulting in a near nervous breakdown of the daughter. Mr. Desai has argued that the minor being a

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daughter and  now of  the age  of 11 years needs the company and guidance  of her mother. It is the argument of Mr. Desai that the mother has no particular self-interest in obtaining the custody of the child and her only concern is the welfare of her daughter, and she has spent and is 77 prepared to  spend whatever  amount  is  necessary  for  the welfare of  the daughter and she is also in a position to do so. Mr.  Desai has  commented that  the main ground on which the learned  single Judge  of the  High Court  and also  the learned Judges  of the  division Bench  had  not  given  the custody of  the minor  to the mother is that the mother is a working girl  and she  does not  have time  to devote to the daughter and  it is  his comment  that  this  is  really  no ground. He  further comments  that the  father in most cases has to  work for a living and in the present case the father earns his  living by plying a taxi at the present. He argues that in  modern times,  particularly in  view of the present economic condition, in very many cases, both the husband and the wife  have to work for a proper living and the mere fact that the  father or  the mother  has got  to attend to work, cannot disqualify  the father  or the  mother. Mr. Desai has submitted that  apart from  the fact  that the  mother is  a working girl,  there is  nothing against  the  mother  which would disentitle  her to  the custody of her daughter and in this connection  Mr. Desai  has referred to the judgments of the learned  single Judge and also the division Bench of the Bombay High  Court. Mr.  Desai has  further pointed out that the learned single Judge gave the custody of the daughter to the father  though the  daughter had  clearly expressed  her desire to live with her mother.      3. The best interest of the minor in the peculiar facts and circumstances  of this  case will  be served only if the minor is  removed from the unhealthy atmosphere of home life and is  placed in  a Boarding  House  where  she  will  have healthy normal  growth in  the company  of other children of her  age   under  the  care  and  supervision  of  competent teachers, unimpeded  by the  conspiratorial attitude  of the father to destroy her feelings for the mother. In support of this submission,  Mr. Desai  has  referred  to  the  various orders passed in which the learned Judges of the Bombay High Court have recorded their impressions after interviewing the girl; and  Mr. Desai  has placed  particular reliance on the report of the Social Welfare Expert, appointed by the Bombay High Court.      Mr. Desai  has further submitted that the minor who has been admitted  to Panchgani  Boarding School  and  has  been there for  some time,  is gradually  fitting in well and she has started  feeling  happy  in  the  institution.  In  this connection Mr.  Desai has  referred to  a number  of letters addressed by  the minor to her mother and also to the report of the Principal of the institution. 78      Mr. Bhandare  learned counsel  for the  respondent (the father of the minor) has raised the following contentions:      1. In  deciding the question of custody of a minor, the Court will  no doubt  be guided  by the consideration of the minor’s welfare  but in  considering  the  question  of  the welfare of  the minor,  the Court  should see  the minor  to ascertain the  wishes  of  the  minor  before  deciding  the question of  the welfare of the minor and the custody of the minor. It  has been  his argument that it is indeed the duty and obligation  of the  Court to  see the minor to ascertain the wishes of the minor before coming to any decision on the question of  custody  of  the  minor.  In  support  of  this

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argument, Mr.  Bhandare has  referred to  S. 49 of the Parsi Marriage and Divorce Act, 1937, Ss. 7 to 17 of the Guardians and Wards  Act, 1890  and also  S. 26  of the Hindu Marriage Act, 1955.  Mr. Bhandare  has strongly urged upon us to send for the  minor and  to talk  to her  either in  Court or  in chambers in  the presence  of the  parents or alone in their absence at  the discretion  of the Court before deciding the question of custody of the minor.      2. The  minor is  a bright  and sensitive  girl and  is deeply attached  to the  members of  the family  and to  her brother  in  particular.  Home  influence  has  considerable importance to  the minor  in properly  shaping her  life and future. Removal  of the  minor from  home and placing her in any  Boarding   School,  however,   good  and   eminent  the institution may  be, will  not enure  to the  benefit of the minor, as  she will  not fit  in and the minor will not feel happy in  the boarding school. The absence of the company of the father,  the brother  and the  other near relations will deeply  affect   the  mind   of  the   minor  and   cause  a phsychological depression  in her  mind and this will impede her  normal   healthy  growth.  Mr.  Bhandare  has  in  this connection referred  to a  letter sent  by the  minor to her aunt (father’s sister).      3. The order of custody of the minor daughter in favour of the  father passed  by the  learned single  Judge of  the Bombay High  Court and affirmed by the Division Bench of the Bombay High  Court should  not be  interfered with  by  this Court in this appeal. The mother has hardly any time to look after the  welfare of  the daughter  as she  has  to  remain constantly  busy  with  her  work.  Mr.  Bhandare  has  also criticised the  conduct of  the mother  and he has commented that the  mother had  walked out of the house without caring for the children and had no time to think of them 79 for a  number of  months and during this period both the son and the  daughter had  lived happily with the father and the other relations.  According to Mr. Bhandare, the only object of the  mother who  is not  in a  position to look after the interests or  the welfare  of the  daughter  herself  is  to deprive the father of the company of his daughter by putting her in a Boarding House.      The principles  of law  in relation to the custody of a minor appear to be well-established. It is well-settled 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.      In Halsbury’s  Laws of  England, 3rd Edn., Vol. 21, the Law is  succintly stated  in para  428 at  p. 193-194 in the following terms:           "428.   Infant’s   welfare   paramount.   In   any      proceedings before any court, concerning the custody or      upbringing of  an infant  or the  administration of any      property belonging to or held on trust for an infant or      the application,  of the income thereof, the Court must      regard the  welfare of  the infant  as  the  first  and      paramount  consideration   and  must   not  take   into      consideration, whether  from any  other point  of view,      the claim  of the  father, or  any right  at common law      possessed by  the father  in respect  of such  custody,      upbringing administration or application is superior to

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    that of  the mother,  or the  claim of  the  mother  is      superior to  that of the father. This provision applies      whether both parents are living or either or both is or      are dead.           Even where  the infant  is a foreign national, the      court, while  giving weight to the views of the foreign      court, is  bound to  treat the welfare of the infant as      being of the first and paramount consideration whatever      orders may  have been  made by  the Courts of any other      country."           In the case of Rosi Jacob v. Jacob A. Chakramakkal      (supra), this Court has observed at pp. 934-935:           "Where, however,  family dissolution  due to  some      unavoidable circumstances  becomes necessary  the Court      has 80      to come  to a  judicial decision on the question of the      welfare of  the children on a full consideration of all      the relevant  circumstances. Merely  because the father      loves his  children and  is not  shown to  be otherwise      undesirable cannot  necessarily lead  to the conclusion      that the  welfare  of  the  children  would  be  better      prompted by  granting their  custody to  him as against      the wife  who may  also be equally affectionate towards      her children  and otherwise  equally free from blemish,      and who  in addition  because  of  her  profession  and      financial resources,  may be in a position to guarantee      better health,  education and maintenance for them. The      children are  not mere  chattels;  nor  are  they  mere      playthings for their parents. Absolute right of parents      over the destinies and the lives of their children has,      in the modern changed social conditions, yielded to the      considerations of their welfare as human beings so that      they may  grow up  in a  normal balanced  manner to  be      useful members of the society and the guardian court in      case of a dispute between the mother and the father, is      expected to  strike a  just and  proper balance between      the requirements  of welfare  of the minor children and      the rights  of their respective parents, over them. The      approach of  the learned single Judge, in our view, was      correct and we agree with him. The Letters Patent Bench      on appeal seems to us to have erred in reversing him on      grounds, which we are unable to appreciate.           At the  bar reference  was made  to  a  number  of      decided cases on the question of the right of father to      be appointed  or declared as guardian and to be granted      custody of  his minor children under s. 25 read with s.      19 of the Guardians and Wards Act. Those decisions were      mostly decided  on their  own peculiar  facts. We have,      therefore, not  considered it  necessary to  deal  with      them. To  the extent, however, they go against the view      we have  taken of s. 25 of the Guardians and Wards Act,      they must be held to be wrongly decided.           The respondent’s  contention that  the Court under      the Divorce  Act had granted custody of the two younger      children to  the wife  on the  ground of their being of      tender age,  no longer  holds good and that, therefore,      their custody 81      must be  handed  over  to  him  appears  to  us  to  be      misconceived. The  age of  the daughter  at present  is      such that  she must  need the  constant  company  of  a      grown-up female  in the  house genuinely  interested in      her welfare.  Her mother  is in  the circumstances  the      best company  for her.  The  daughter  would  need  her

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    mother’s advice  and guidance  on  several  matters  of      importance."      These observations  were no  doubt made  by this Court, while dealing with a case of rival claims between the father and the mother over the custody of the minor children mainly under the  Guardians and  Wards  Act,  1890.  The  aforesaid observations in  our opinion,  are applicable to the instant case.      We shall  now proceed  to examine the contention of Mr. Bhandare that  in deciding  the question  of custody  of any minor, it  becomes the  duty and  obligation of the Court to interview the  minor for ascertaining the minor’s wishes and to implement  the same.  S. 49  of the  Parsi  Marriage  and Divorce Act,  1936 provides "In any suit under this Act, the Court may  from time  to time  pass such  interim orders and make such provisions in the final decree as it may deem just and proper  with respect  to the  custody,  maintenance  and education of  the children  under the  age of  16 years, the marriage of  whose parents  is the subject of such suit, and may, after the final decree upon application by petition for this purpose,  make, revoke,  suspend or  vary from  time to time all  such orders  and provisions  with respect  to  the custody, maintenance and education of such children as might have been  made by such final decree or by interim orders in case the suit for obtaining such decree were still pending". This section  confers power  upon the  Court  to  pass  such orders as  the Court  deems just  and proper with respect to the custody, maintenance and education of the children under the age  of 16  years in  a case  falling  under  the  Parsi Marriage and  Divorce Act, 1936. This section does not speak anything about  a Judge  interviewing a minor before passing any  order   in  the  matter  of  custody,  maintenance  and education of the minor and this section or any other section in this  Act, does  not cast  upon the  Court  any  duty  or obligation to  see the  minor and to ascertain the wishes of the minor.      The material portion of S. 7 of the Guardians and Wards Act, 1890  to which  reference has been made by Mr. Bhandare reads as follows: 82           "7(1). Where the Court is satisfied that it is for      the welfare of a minor that an order should be made:           (a)   appointing  a  guardian  of  his  person  or                property, or both, or           (b)  declaring a person to be such a guardian; the                Court may make an order accordingly." This section empowers the Court to appoint a guardian of the person or property of the minor where the court is satisfied that is for the welfare of the minor to do so.      S. 17  of the Guardians and Wards Act, 1890 may in this connection also be noted :           "17. (1)  In appointing  or declaring the guardian      of a  minor, the Court shall, subject to the provisions      ofthis section,  be guided  by what, consistently, with      the law  to which  the minor is subject, appears in the      circumstances to be for the welfare of the minor.           (2) In considering what will be for the welfare of      the minor,  the Court shall have regard to the age, sex      and religion  of the  minor, the character and capacity      of the proposed guardian and his nearness of kin to the      minor, the  wishes, if  any, of  a deceased parent, and      any existing  or previous  relations  of  the  proposed      guardian with the minor or his property.           (3)  If  the  minor  is  old  enough  to  form  an      intelligent preference,  the Court  may  consider  that

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    preference.           x    x    x    x    x    x    x     x    x           (5) The  Court shall  not appoint  or declare  any      person to be a guardian against his will." This section  provides for  matters to  be considered by the Court in  appointing the  guardian. Sub-section (1) provides that subject  to the  provisions of  this section, the Court should consider the law to which the minor is subject and be guided by  what appears  in the  circumstances to be for the welfare of  the minor.  Sub-section (2)  stipulates that  in considering what will be for the welfare of 83 the minor,  the Court  shall have regard for the age sex and religion of  the minor,  the character  and capacity  of the proposed guardian  and his nearness of kin to the minor, the wishes, if  any, of  a deceased  parent, and any existing or previous relations  of the  proposed guardian with the minor or his  property. Sub-section  (3) empowers the Court in the event the  minor  is  old  enough  to  form  an  intelligent preference, to  consider  the  preference.  Sub-section  (5) prevents the Court from appointing or declaring any guardian against the  will of  the person.  Sub-section (3)  of  this section  undoubtedly  enables  the  Court  to  consider  the preference of  any minor  if the minor is old enough to form an intelligent preference.      In the  present case  we are  not  concerned  with  the question of appointment of a guardian either of the property or of the person of the minor, under the Guardians and Wards Act, 1890.      We may,  however, point  out that  there cannot  be any manner of  doubt as to the Court’s power of interviewing any minor for ascertaining the wishes of the minor, if the Court considers it  so  necessary  for  its  own  satisfaction  in dealing with  the question  relating to  the custody  of the minor.      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 84 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

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such a  situation to  decide as  to what  will 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.      We are,  therefore, unable  to accept the contention of Mr. Bhandare  that there  is any  duty or  obligation on the part of  the Court  to interview  the minor for ascertaining the wishes  of the minor before deciding the question of her custody and that we should send for the minor in the present case and  interview her  to ascertain  her wishes  before we proceed to decide the question of her custody.      Home influence  plays a  very important role in shaping the life of every child. Influence of a happy home where the children are  brought up  under the  affectionate  care  and guidance of their parents and other relations, all concerned with the  welfare of  the children,  no doubt,  enables  the children to  lead  a  normal  healthy  life  and  materially contribute to  their welfare.  In a  happy home the children are free  from any kind of unhappy tension and psychological strain and they grow up in a healthy environment where their interests and  welfare are  properly looked  after by  their parents. In  such a  case, the court is naturally not called upon to  interfere  and  to  consider  the  welfare  of  the children and  the welfare of the children is well taken care of by their parents whose primary concern is to see to their interest and  welfare. It  may, however,  be mentioned  that even in  cases of happy homes where the children have a very congenial atmosphere  for their  healthy growth and are very well looked  after by  their parents,  the parents,  in many cases do  send  their  children  to  Boarding  Schools.  The parents do so, as the 85 parents feel  that the interest and welfare of children will be better served, if they are sent to a good Boarding School where the children, on their own and in the company of their fellow students,  will have a greater and better opportunity of  developing  their  personality  and  shaping  themselves properly under  the supervision  of  competent  teachers  to enable them to fashion their lives properly and face bravely and squarely  the  hard  realities  of  the  world.  A  good Boarding School  has  very  many  advantages  and  is  in  a position to  enforce proper  discipline which  is  obviously necessary for  healthy growth  of every  child. It  is well- known that mainly because of such desire on the part of very many of  the parents  to  send  their  children  to  a  good Boarding School,  seats  are  hardly  available  in  a  good Boarding Institution  these days and seats have to be booked well in  advance. Loving  parents who send their children to Boarding Schools  for education,  have generally  to  do  so against the  wishes of the children. Children will naturally not be inclined to stay away from their affectionate parents and to leave their happy homes where they enjoy not only the affection and  care of their parents but also all the homely comforts and they do not like to be subjected to the rigours of strict  discipline enforced  in a  Boarding  Institution.

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Children sent  to a  Boarding Institution  from happy homes, also  find   it  difficult   to  adjust  themselves  to  the environment of  a Boarding  School and  may  not  feel  very happy. Fond  parents bearing  only in  mind the interest and welfare of  their children  still send their loving children to Boarding  Schools against  the wishes  of  the  children, sacrificing themselves  the company  of  their  children  at home, and  persuade their  children to  adjust themselves in the  Boarding  School  and  they  go  on  encouraging  their children to  enable them to settle down in that institution. Parents do  so at considerable sacrifice to themselves, only in the hope and expectation that the interest and welfare of the children  will be  best served.  It is common experience that children  who are  sent from  happy homes  to  Boarding Institutions and  when do  not feel  easy and comfortable in the Boarding Institution when they join to such institution, soon adjust  themselves to  the new  environment and come to like the Boarding Institution where in the company of fellow students they  lead a  healthy  and  happy  life  under  the guidance and  care of competent teachers to the joy of their parents.      It is also no doubt true that children who stay at home with their  parents and  do not  go to  Boarding Schools may also be  very well  disciplined in  life and may have a very healthy, happy  and normal  growth while  staying  at  home. Indeed, the majority of 86 children in  our country  are brought  up in their homes, as very many  of the  parents are not in a position to bear the expenses of  a  Boarding  School  for  their  children.  The children  grow   well  and   happily  in   homes  under  the affectionate care  and guidance of their parents, so long as they continue  to enjoy  the blessings  of a  happy home.  A broken home,  however, has  a different tale to tell for the children. When  parents fall  out and  start  fighting,  the peace and  happiness of  home life are gone and the children become the worst sufferers. It is indeed sad and unfortunate that parents  do not  realise the incalculable harm they may do to  their children  by fighting  amongst themselves.  The husband and  the wife  are the persons primarily responsible for bringing  the children  into this world and the innocent children become  the worst  victims of  any dispute  between their father  and the  mother. Human-beings  with  frailties common to  human nature,  may not  be in  a position to rise above passion,  prejudice and  weakness. Mind  is, indeed, a peculiar place  and the  working  of  human  mind  is  often inscrutable. For  very many  reasons it may unfortunately be not possible  for the  husband and wife to live together and they may be forced to part company. Any husband and wife who have  irreconciliable  differences,  forcing  them  to  part company, should,  however, have  sense enough  to understand and  appreciate   that  they  have  their  duties  to  their children. In  the interest  of the  children whom  they have brought into  existence and  who are innocent, every husband and wife  should try to compose their differences. Even when any husband  and wife  are not  in a  position to  reconcile their differences  and are  compelled to  part, they  should part in  a way  as will cause least possible mischief to the children.      Hard facts  of life, however, go to show that when near relations fall  out, the  passions  and  sentiments  are  so worked up  in them  that they lose the right perspective and are not  in a  position to  consider  and  judge  what  will ultimately be  for their  good. In  the  instant  case,  the disputes between  the parties who had been married for years

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and are  responsible for the birth of two children, have now become so  bitter that  a number  of  proceedings  including contempt proceedings  by either  of them have been initiated and the unfortunate children have been paraded from Court to Court. The  learned Judges of the High Court have done their best to  compose the  differences and have from time to time passed appropriate  orders which, if implemented in the true spirit would  have enured  to the  benefit of all concerned. It, however,  appears that mainly because of the attitude of the father, the various orders directinng the children to 87 stay with their father for five working days in the week and with the  mother during the week-ends and also apportionting the period  of  their  stay  with  the  parents  during  the vacations passed  by the  learned Judges  of the Bombay High Court from time to time in the best interests of all parties concerned including the children, have failed to achieve any useful purpose and have only resulted in further litigation. The facts  and circumstances  of the case establish that the father out  of spite  against the  mother is  not willing to allow the  children to stay with their mother. Obsessed with the idea of having exclusive control of the children, he has been trying  to poison the minds of the children against the mother with  the only  object of  completely alienating them from their mother, and in his spiteful obsession, the father fails  to  appreciate  the  very  great  harm  done  to  the children. It  appears that  the father  has succeeded in his attempt in  alienating the son who, as the records show, was once deeply  attached to  the mother and had great affection for her; and, the son has now become hostile to the mother.      The Respondent  husband in  view of his bitter feelings against the  appellant, may  feel elated  and  satisfied  in having succeeded  in making  the son  hostile to the mother. He, however,  does not  appreciate the very great stress and strain the  son must have undergone in the process of losing his love  for the mother and he also does not understand how unfortunate it  is  for  any  son  to  be  deprived  of  the affection of  his mother  and to  lose his  own love for the mother. The  mother still  appears  to  have  a  very  great affection for  the son.  The situation is unfortunate but in this appeal  we are  not concerned  with the  son who is now well over  16 years  of age. We only hope that all concerned will try to restore good relationship amongst themselves, as we feel that though the husband and wife have now parted for good, restoration  of friendly  relationship amongst  all of them will  enable them  to live  in peace  and happiness and allowing the  bitterness to  continue will only add to their miseries and troubles.      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 28.6.1979, was  on the  verge of  near nervous break-down as noted by the Division 88 Bench in  its judgment  dated 31st  July, 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

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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 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.      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.      Pursuant to  the order  passed by the Division Bench of the Bombay High Court the mother got the child admitted into 89 Kimmins 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.      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.      The question  of custody  of the child must necessarily be considered from the only view point of the welfare of the child. In  view of  our finding that in the instant case the best interest of the child shall be served by keeping her in a Boarding  School away  from the  unhealthy  atmosphere  of strain and  tension which  she had  been undergoing at home, the question of custody has to be judged in this background. In that  view of  the  matter  it  does  not  really  become necessary for  us to  go into  the question of the merits of the respective  competence of  either of  the  parents.  The person to  whom the custody of the child has to be entrusted

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will necessarily  be answerable to the school for payment of all charges  and expenses  of the child and also in relation to any matter concerning the child in her school life. It is clear that  the father is not inclined to allow the child to remain in  a Boarding institution. If the custody be left to him, the  father in  view of the disinclination to allow the child to  remain in  the Boarding  institution, may  be in a position to  create  difficulties  for  the  child  for  her remaining in  the  institution  by  nonpayment  of  fees  or otherwise.  As  we  have  earlier  noticed,  the  father  is obsessed with the idea of obtaining exclusive control of the daughter and  keeping the daughter with him in his house. It is not  in dispute and it cannot be disputed that the mother has a  great deal  of affection  for her  daughter  and  the daughter is also very fond of the mother. The mother has the welfare of  the daughter  in her heart and to serve the best interest of  the daughter the mother is prepared to make any necessary sacrifice.  For the  welfare of  the daughter  the mother at  considerable  expense  had  put  her  in  Kimmins Boarding School,  Panchgani which is recognised to be a good institution. She has 90 been paying  for all  the expenses  of the  daughter at  the school. She  has a  steady income  out of  which she is in a position to  meet all  the expenses  of her  daughter at the school. The  mother also  does not suffer from any obsession regarding possession  of the girl and she wants her daughter to lead  a healthy  normal life  essential  for  her  proper growth and  development. The mother is very anxious that the child should  continue to remain in the Boarding School. The girl now  aged about  11 years,  is reaching an age when she will need  the guidance of her mother. We are, therefore, of the opinion  that the custody of the girl should be given to the mother.  The argument  of Mr. Desai that the Bombay High Court went  wrong in refusing the custody of the daughter to the mother mainly on the ground that the mother is a working girl, is  not without  force. It  also appears that the High Court failed  to properly  appreciate that home influence in the present  case had  been doing  very great  damage to the healthy growth  of the  child and  had brought  about a near nervous breakdown  of the girl. The argument of Mr. Bhandare that the  girl needs in any event the company of her brother to whom  she is  deeply attached,  has not impressed us. The girl had  been staying  with her father at home and had been enjoying the  company of  her brother. It does not, however, appear that  the home  influence including  influence of the brother, has done her any good. The influence at home, as we have earlier  noticed, has  more or  less made her a nervous wreck. The further fact also remains that the brother is now grown up  and he  may not  be there at the house to give her company. At  the time of hearing of the appeal we were given to understand  that the  brother was away at Ceylon as a sea cadet and was likely to return soon. We may also add that by the directions  already given  by this  Court, all necessary and proper  opportunities have  been given to the brother to meet the minor.      In the  result the  appeal succceds.  We set  aside the judgment and  order passed by the Bombay High Court allowing the custody  of  the  child  to  the  father.  We  pass  the following order:-      The appeal is allowed The custody of the child is given to the mother, the appellant before us. The mother will have the custody  of her  minor daughter Gospi reaches the age of 16 years. 91

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    We also give the following further directions :-      1.   The child Gospi, the daughter of the appellant and           the respondent  shall be  allowed to  continue her           education in  the Kimmins  High  Court  School  at           Panchgani.      2.   The  parents  will  be  at  liberty  to  meet  the           daughter alternatively  in accordance  with  rules           and  regulations   of  the   school,   the   first           opportunity  of  so  meeting  the  daughter  being           afforded to the father.      3.   While the  girl is  in the school at Panchgani she           will be  at liberty  to write  letters to both her           parents  and   also  to   her  brother  and  other           relations and friends.      4.   When the  school closes  for any vacation the girl           will live  with the  father for  the first half of           the vacation  and thereafter  will live  with  the           mother during the secoud half of the vacation. The           father will  arrange to  bring the  girl from  his           school to his place.      5.   Under no circumstances the father will be entitled           to keep  the girl Gospi with him beyond the period           of  the   first  half   of  the  vacation  without           obtaining any  prior  order  from  this  Court  on           notice  to   the  appellant.   The   father   will           positively and  punctually hand  over the child to           the mother  on the  expiry of  the period  of  the           first half  of the  vacation at the mother’s place           of residence.      6.   On the  expiry  of  the  vacation  the  mother  is           directed to  take the  child back to the school at           Panchgani and  entrust her  to the  custody of the           Principal of the School.      These directions will remain in force, unless otherwise ordered by  this Court,  as long as the minor Gospi does not reach the age of 16 years.      It may  be placed on record that after the judgment had been prepared  and made ready, I received a letter purported to have  been written  by the  minor Gospi.  It is  indeed a curious letter  which has been written in an inland card. It appears from the inland 92 letter  card  that  the  inland  letter  card  contains  the photostat copy  of a  letter dated  15.5.1982 by  her to the Chief Justic  of India and the inland letter card also bears a photostat  copy of  the Supreme Court address of the Chief Justice of  India. In  the very same letter a few lines have been addressed  to me  in the space left after the photostat copy of  the letter  dated 15.5.1982 to the Chief Justice of India has been completed. The letter addressed to me in this very inland  air letter card is dated 13.6.1982. This inland letter card  which contains the photostat copy of the letter dated 15.5.1982  and the letter dated 13.6.1982 has been put in an  envelope  sent  to  me  under  registered  post  with acknowledgement due. An identical letter written by the girl in the  very same  manner in  another inland air letter card contained the  photostat copy  of her letter dated 15.5.1982 to the  Chief Justice  of India  has also  been sent  to  my learned brother  Pathak, J. The letter to my learned brother is also dated 13.6.1982 and is word for word the same as the letter to  me. The  inland letter  card in which the exactly similar letter  has been addressed to my learned brother was also put  in an  envelope  and  sent  to  my  brother  under registered post.  The registered envelopes of both these two letters addressed  to us indicate that the letters were sent

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from the address of her father.      We do not propose to set out the contents of the letter as we  feel that  the same will not serve any useful purpose and may  only create unnecessary embarrassment and avoidable unpleasantness for  the parties.  It has  been  our  earnest endeavour to try to create a situation of amity and goodwill as far  as possible  under  the  circumstances  amongst  the parties in  the larger interest of the minor girl and to try to avoid  to  say  or  do  anything  which  may  create  any unpleasantness or bitterness amongst them. Suffice it to say that the  main purport  of these  letters is that Gospi does not want  to continue her studies in the boarding school and she wants that we should interview her and allow her to stay with her father.      We have no manner of doubt that these letters have been written by  Gospi at  the instance of her farher. Even if we accept that  Gospi wrote  a letter  to the  Chief Justice of India on  15.5.1982 it  is  inconceivable  that  a  girl  of Gospi’s age  could ever think of keeping photostat copies of the letter  and it  would also not be possible for a girl of her age  to prepare photostat copies. It is obvious that the letter dated  15.5.1982 addressed  to the  Chief Justice  of India, if  the letter  had been  sent at all, must have been written by  Gospi under the direction of the father who must have prepared 93 photostat copies.  It is  interesting to  note that when the hearing of  the matter  had been  concluded and  we reserved judgment after  passing the  interim order on the conclusion of the  hearing these  two letters  absolutely identical  in every word  and detail  should be  addressed to  us. It  was indeed not possible for Gospi to know which particular Bench of this  Court was  hearing these  matters.  The  registered envelopes in  which the letters have been sent also indicate that the  letters have  been sent  from the  address of  the father. These letters have been written in inland air letter cards containing  the photostat  copy of  the letter  to the Chief Justice  of India  with the  obvious object of showing that Gospi  had earlier  written to  the Chief Justice about this matter.  We have  no doubt that these letters have been addressed to us after the conclusion of the hearing with the object of  lending support to the submissions made on behalf of the  father in  course of  the hearing  and  creating  an impression in  our mind  that we  should see Gospi before we deliver our  judgment and  we should  not place Gospi in the boarding institution and should allow Gospi to stay with her father. We  feel that  father has caused these letters to be addressed to us by his daughter, while the daughter had been staying with  him, particularly in view of the interim order passed by  us on  the  conclusion  of  the  hearing  pending judgment  so   that  we  may  reconsider  our  order,  while delivering our judgment and disposing of the matter finally.      We cannot  help observing that these letters go to show that the view that we have taken is clearly right and we can place no reliance on any kind of wish of Gospi who is not in a position  to form  any independent volition of her own and she  expresses   different  kind   of  wishes  in  different situations under  the influence and domination of others. As we have  earlier discussed  at length in the judgment, it is not possible for the girl in the situation now prevailing to express   any    preferential   wish   which   may   require consideration by  us to  decide her  welfare. These  letters have the affect of strengthening the impression in our minds that Gospi’s real welfare will be best served by keeping her in the boarding institution and cannot be served by allowing

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her to stay with her father.      Now that  the matter is finally over, we ask the father once again  not to  persist in  his present  attitude, as it will do  a lot of harm to his daughter whose sensitive mind, disturbed as  it is,  is likely  to  get  destabilised.  The father who  has his  love and  affection  for  the  daughter should appreciate that his daughter is indeed fortunate 94 in being  in a  position to  receive her  education from  an institution of repute and that the education of his daughter at the  boarding institution will conduce to her healthy and happy growth and to her welfare. The father should encourage Gospi to  settle down  properly in  the boarding institution and to  make the  best of  it. If we, however, find that the father is  still persisting  in his  present attitude and is seeking to  upset the  mind of the girl in properly settling down at  the institution,  we may  reluctantly have  to take appropriate steps in the interest and for the welfare of the minor  girl   for  whom   the  Court   has  now   a  special responsibility. We do hope that no such occasion will arise.      We hope  that Gospi will realise that she is having her education in  a good  boarding institution in an environment which is  otherwise free from unhealthy atmosphere of stress and strain  from which  she had  been suffering for the last few years.  She should  also appreciate  that her upbringing and education  in this reputed institution in the company of children of  her age  and under  the guidance  of  competent teachers will be for her good and she should try to make the best possible use of her study in the institution and devote herself to her studies.      We direct  that the  two letters  should be kept in the records of the proceedings of this appeal.      After we  had received  the letters  from the  girl,  a letter dated  5th July  82 addressed by the Principal of the School to  the Assitant  Registrar of  this Court  has  been placed before  us. In this letter the Principal has informed the Court  that on  the expiry  of the  holidays the  mother brought the  girl back  to the school and the girl was happy in school  and in the first monthly report for the months of May and June, the girl has done very well in her studies and secured 65%  marks with  7th position.  We direct  that this letter of  the Principal  also to  be kept in the records of the proceedings of this appeal. S.R.                                         Appeal allowed. 95