THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA

Citation: [1983] 1 S.C.R. 49

Court: Supreme Court of India

Bench: R.S. PATHAK, AMARENDRA NATH SEN

Judgment text

THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA ("'~ August 4, 1982 [R. S. PATHAK AND AMARENDRA NATH SEN, JJ. J ' Law relating to minor child-custody of the minOr daughter aged 11 . years. whether to be with the mother- or the father Duty of the Court-Whether it is obligatory on the part of the Court to inter11leW the minor for ascertaining the 'minor's wishes and iMplement the same-Parsi Afarriage and Divorce Act. 1936, Section 49; Guardians and Wards Act. 1890: Sections 7 to 17. The appelJant 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 D. the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years. Irreconcilable differences and embittered relationship between the appellant and the respondent had led to the filing of Suit No. 14 of 1979.

by th~ 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 presenc. e of the parents and passed appropriate ·and equitable orders, keeping in the fore front the welfare of the minor children. The boy bas now become a major as per the ·Parsi Marriage and Divorce Act and the question of bis custody does not arise. The custody of the minor daughter was ultimately given to the father as per the order of the Division Bench of-the Bombay High Court dated October 16, 1981. Hence the appeal by the appellant ~other, after obtaining Special lea"ve of the Court. AJJowing the appea'! , the Court. HELD : I.

It is well settled t_hat 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 welf~re of the minor and to protect thC minor's interest. In considering the question of custody of a minor, the Court has t6 be guided 'by the only consideration of the welfare of the minor. (79 B·D] Rosi JactJb v. Jacob A. Chakrammakkal [1973] 3 S. C. R. 918 followed. • 7:1 There is no duty or obligation cast on the part of the CoUrt to interview the minor for ascertaining the wishes of the minor befor~ ~~~i~ing th~ ~~~t}~r;\ of tbe child custody under section 49 of the Par~i M;arriage . and Divcirce Act. 1936. [81 F-GJ 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 J:Iowever, there·cannot be any ·manner of doubt as the Court's power ofentertaining any minor for ascertainii:ig 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 DJ 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, tho 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 frOrn 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 l~arned judges of the Bombay High Court iB their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarassing 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 ihe minor and interviewing her in the present case, will not only not serve· any useful purpos1: but will have the effect of creating_ further depression and demoralisation in her mind. [83 E-ll, 84 A-DJ 3:1 60 a consideration of all the facts and circumstances of the c8. se and ·, bearing in. mind the paramount consideration of the welfare of the child, the cbild'15 interest and welfare will be best served by removing her from the infiuebce of home life and by directing that she should coptinue to remain in the boarding school, which is admittedly a good institution. · . ·3:2 Home influence plays a very important role in shaping the Hfe 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 ~oncerned with the welfare of the children no doubt, enables the children to lead a n. ormal_P. ealtby life and materially contributes to their welfare.

In a happy home, the children are free from any kind of unhappy teqsion 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 upon to interfere and to consider the welfare of the children and the \V_elfare of tP. ~ children is well taken care of. by their parents whose primary coh6eri is to \ tiiRITY HOSHIE v, HOSHlAM 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 aad may have a very healthy happy and normal growth, while staying at home. ~Therefore, in the interest of the childre~n whOm they have brought into exis~ence 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 iri a position to reconcile their differ~nces and ~re compelled to part, they should part in a way as will cause least possible mischief to the children. [84 E-H, 85 H, 86 El 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 child9 who has to live in constant psychological strain in such a broken ho me in view of the bitter relationship between her parents fo each of wfiom she has great affection, the hCalthy and normal growth of ther . ' • 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 removCd, from suCh unhealthy environ~ meat of. a broken home surcharged with tension. In such a case, the prope~. and best way or serving the interest and the welfare of the child wi11 be to remove the child from such atmosphere of acrimony and tension and to put the child in a place "'.

here the embittered relationship between her parents does not easily and 'D 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 the welfare of the child. The person to whom the 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 h'im, the father it1 view of the disinclination to al1ow 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 obtairiing exclusive control of the ,dallghter and keeping the daughter with him in his house. [89 E-F] It is not . in dispute and it cannot b/~isputed that the mother has a great de'al of affection for her daughter in her heart and to serve the best interest of the -dat,Jghter 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, Panc'hghani, which is recognisd to be a· very g0od institution. She has been paying for all the expenses of the daughter at the school. She has steady income out of which she is in a position to meet. all the expenses of her dau'. ghter at th. e school. The mother, also does not suffer from ar:i.

y obsessjon reg_arding posession of the girl and she ~ants her daughter to lead a healthy normal life essential for her proper growth and development~ The niother is very anxious that the child should continue to remain in the Boarding School. The ·girl now _aged about 1t years, is reaching all age when she will need the guidance of the mother. "! hercfore, the custody of the girl should be given to the mother. [89 F-H, 90 ~-Bl · 52 SUl>IU! ME COURT llilPOllTS [1983I 1s. c. ll. 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. 8 V. S. Desai, B. R. Agarwala and M. N. Shroff for the Appellant. . / MC. Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and T. Sridharan for the Respondent. The Judgment of the Court was delivered by AMARBNDRA 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 n;iore 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 ho. th genuinely fond of their dau! lhter 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 iCourt. The task of the Court Js. _indeed difficult and delicate. The Court in this case, is concerned with a human· problem affecting \he 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 ang 9elicate that task may be. · tl! RITY l! OSHIE v. HOsl! IAM (A. N. Sen, J. ) We shall now proceed to state some of the broad facts relevant 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 custo11. 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 app_ellant 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 de-scribe in the judgment ·either as the appellant·or the mother, has been in the employment of Tatas for a long 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 enaJ? le 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 i11 Mount Villas at Bandra, the tenancy of which siood in th. ~ · name of the appellant. As the appellant is aa- 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. 14/1979 made ,an application for getting the custody of both the children i. e. the son Shiavu' and daughter Gospi. By consent of the parties on 27. 4. 1979, an interim urder 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 Petltioa'er and S4 stJPl\llMll t:bbRT REPOllts f! 9S3j I s. C. il. to 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 commenc· ing from 5th May 1979 and ending 20th May, 1979. Petitioner undertakes throl! Jlh 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 to keep the children with her •either at Lonavla or M_atheran 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". THRITY HOSHIE v. HOSHIAM (A. N. Sen, J. ) SS 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 oy 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 liaving 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 left at the school. The mother shall have access to ihe 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 thoug! i Mond I 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 cllildren outside llombay. if she so desires, THRITY HOSHIB v. HOSHIAM (A. ' N. Sen, 'l. ) 57 I The present arrangement of the pa~ents · sharing the . company of the children during the vacation to continne in the coming October and D~cember vacations on the basis of the children remaining with the father in' the first half of the vacation and with mother in the otlier half. ~. This arrangement of sharing the· company of the children during the. vacation will also apply for ~oming years pending the hearing and final disposal of the suit. . I . It is clarified that the order, whereby the children· go to their mother every week. end, ·will . not ·be effective· during the vacatio. n perioq as the children for the firsi half of the vacation will be exclusively with the father and· the'other half exclusively with the mother. · Chamber Summons absolute ! lccordingly with no order as to costs.

" I It may be'mentioned that the daughter Gospi, had been admitted to~ Carmel Convent High School in the·X. G. Class and she had been studying in that School. Shiavux was a student of St. Anne's High . School. It appears that on 15. 6. 1980, the Respondent without informing the appellant and ·without her knowledge or consent • removed Gospi from Carmel Convent High School and put hef 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 Juiy 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the. following order : .

' I "This is ·a petition for ihe cusfody of the two minor children and for the decision of the question as to whether the minor daughter Gospi sh6uld be removed . from St. Aime's High School where she has just been got admittea. :by her father. As far as the qu. estion -of fin'al custody is concerned, it appears, particularly' in. view ·of the orders passed earlier by Lentin J. and Agarwal, J. that that question can be more conveniemly decided when the suit is disposed·of. This posWon is accepted b¥ both the parties, ' . As far as the· question of change of school is con· cerned, it is regrettable that the respondent husband has changed the minor's school from Apostolic Carmel Convent High School to St. Anne School without previousiy inforni-ing 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 readmitted to Carmel Convent High Sc_hool. If the child is not very happy in thenew school i. e. St. Anne's ~chool, the :question of changing her school and getting her admitted in Carmel Convent High School can be consid~ed 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 ! _earned 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 1 has either been 'brainwashed', 'tutored' or 'pressurised', into not going to the father. She is undergoing a tremen- . dous mental and emotional upheaval which finds her bewildered and totally · unh"appy at the increasing acrimony between her paren1s. 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 .

H compelled to 'go to her father against her wi•hes, the ' consequences on her well being and her mind in its present ~t~te are predictable and will be dis~strous, THRITY HOSHIE v. HOSHIAM (A. N. Sen; J. ) 59 Her conversation -with me did not reveal any intention 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 he. r to go to her father against her will. The husband's contention that the wife 8 should have applied for modification of that order, does not take into account (i) that she wa. s tryi"i! ' to persu.! lde 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 punishi~g her, Would in this case be DO .. . ·solution io what js basically a human problem, more so • when looked at from the view of the child who is inteli'i!

ent 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 or. der on the motion . with no order -\. as to costs. I suspen·d my earlier order dated 20th • June, 1979 to the extent that it gives the husband access to the W.. 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 ih~ 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 sh'e 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 fhe facade that all is well between her parents:" Against the said order of Lentin, J. ·the. Respondent filed an appeal. ·. During the pendency of the appea. 1, 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 pa~sed in the suit filed by the appellant, divorce was granted o~ IQ ere was no' provocation· to do so;-and this was so even in the presence ·of her mother, the Respondeni. The· child app~ared to be nervous and kept biting her nail~. · I had an occasion to· meet Gospi and Shiavux about a· year ago when a Chamb. er Summons taken out by the Respondent, w. as 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 ihe. . mother. On three . different occasions she. stated that she ' . . was not tutored and brain-washed.. It appears to ine that the child is under considerable m~niaJ pressure and at . present she is not a normal child.

It is impo;tant 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 an·d 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 Exami. nation in three, subjects. Normally I would have given ·preference to the desire of the child an·d would have acceded ·to her request. In the -instant case, however, I do nqt think that it i. s in theinterest 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 tlie custody of the father. .. . . Such al) arrangement will permit both the brother and the sist~r to grow up together and it' will allow both of them tC\ take comfort and counsel from each· other. I consider tliis 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 ·Petitione~ till such time as they reach the age of majority i. e. 16 yeilrs. Boih the mlnors will remain with· the Petiiioner during the course ·of the week i. e. from M~ndays till Frjdays. The Petitioner will take the children on Saturday mornings 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 wilf' . band 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 ,/ .. pet1t10n. 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 a.

nd the appellant also applied for interim stay of the· order passed by Mehd, J. It appears that an ad-interim stay was granted by the Division Bea'ch. 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 agaiust . 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 appellant's residence each Thursday by 8 p. m. ·THRiTY HOSHIB v. HoSHIAM (A. N. Sen, J. ) 63 .

So far as' the school vacations are concerned, the 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 t" 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 t~at we had seen the child Gospi in Chambers on March I0, 198 l and had found her to be an ·· . > extremely bright and intelligent child. We may further record that the cchild stated that she did not· have any ·aversion to spe!

ld 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 appellan~. with whom she wanted to stay or that some ·application would be made to the Court on E' behalf of the respondent for ·the -purpose of not returning the child fo the appellant but to keep her 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 wJth respect to the sharing ·of school vacaJ tfons also to apply if ihe child Gospi gets re-admission in ihe Apo•tolic Carmel Convent High . School lrom the ne. xt academic year foi the school tefms and vacations: If the child Gospi does n~t 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 Scho.

ol terms and ·the sharing of vacations to ·other school terms and vacations: Costs of this Notice of Motion will be costs fa the appeal". ' siJPRi! i. iii coiJil. t REPoR'J'S (! 9S3j i s. C. R. 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. complainfog of the breach of,tbe undertaking and on. the said application the Court passed, inter alia, the following . . 8 order : .. ... "There were some allegations and counter-allegations made by the parties against, each other,· into which we do noi 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 examina'tion in the Vth · standard in which she is .

studying commences tomorrow and will finish on April 15, . 1981. Purely bearing this c. ircumstance in mind, we permit the chHd to continue to ,· be with the Respondent until April 16, 1981. On tha't 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 I ·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 theni over to fhe 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 directiqμs. The pariies and the child Gospi ) : ' will remain presendn'Court, and the Respondent will bring the child to Court on that day. ' We also restrain, pending.

the g1v10g of further directions, the respondent, his servants, agents and . family members from taking the child Gospi outside-Bombay. " \ Oh 16. 4. 1981, the matter came up again before the same division· ·H Bench for final orders and the Court was pleased to pass tffe following order:· ( -. TIIRITY H~SHIE v. Hl>SHIAM (A. 'N. Sen, J. ) • I . "Today in our Chamber we have ~heard both learned .. i:dvocates 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 age.

- We further pointed out that when we had talked with the child ·aospi on April 3; 198'1 in our Chamber, we had found her using the same type of pharaseologyan! l words similir as those used by Shiavux and in speaking of various family. 111atte~s almost echoing what S_hiavux had said. When· we put this to Mr. Deshmukh, the learned advocate for ·the Respondent, he replied that t'liat was because th~e and again there was ialk about this case in the Respondent;s house-hold. In our opinion, such • talks taking place in t~e presence of ~ child cannot-be con-. ducive to the happy or healthy psychological growth and developme~t of a child. Mr. Deshmukh, ·the learned Advocate for the Respondent further made a request to us thatthough on March 20, 19Sl we had directed that Gospi sQ_ould spend the first half of. the vacation. with the app~llant, 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. Qesbm\lkh . statecl 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 weinquired, we were informed that· Gospi had also been taken to said Maiji on th urned 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 (6, 1981 directipns as to with whom the child is , / 68 stJJIR. EMl3 toilllt RllPo! lts [,1983] I S. C. R. to spend the rest_of the vacation and the right of access of the other parent to the child wilf be decided by us after receiving the report and after bearing the advocates for .. . the parties. " ' ' It appears that the minor daughter Gospi who t. ad been living with her mother bad been missing from her mother's 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 consistiog 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 thechlld to 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 admittea into Kimmins ·Boarding School a't Panchgani. · 8 The appeal preferred bf the appellant to the Division Bench -of the Bombay High Court'against the judgment and order passed by Mehta, J. on 19. 2. 198! allowing the custody of the minor daughter to the father came up for hearing before a Division Bench of the High Court consisting of Jabagairdar and Asbok Modi, JJ. in -October, 1981: It appears that in tlie course of the hearing of the appeal, the learned Judges bad expressed their desire to meet the minor Gospi arid . 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 ModJ, J. on 9th October, 1981.

We may note that· the learned Judges have recorded their impression of the int~rview 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 ~ppellant with the following order :- "For reasons to be recorded in the judgment to be delivered Tater, we dismiss this appeaf challenging the order dated 19th February, 19. 81 passed by Mehta, J. . This in effect means that the said order awarding the custody of the mino , . I 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 be 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 bas argued that the minor being a 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 a. nd her only concern is the welfare of her daughter, and she has spent and ·is ! 9 fl973J 3 S. 9. R. ns, THRITY IIOSIIIE v. JiOSHIAM (A. N. Sen, J. ) 77 prepared to spend whatever amount is necessary for the ·welfare of the daughter an. d sheis also in a position to do so. Mr. Desai has commented that the main ground on. w~ich the learned single Judge o~ the High Court and also the learned Judges of the division Bench bad no't 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 commeni 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 wbicb 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 0 Bench of the Bombay High Court. Mr. Desai has further pointed out that the learnei:I sinole Judoe oave the custodv of the dau2hter to the fathe;;h~u~h th;daughter-had clearly expressed. her desire to live with her· mother. 3. Th.

e best interest of the minor in the . Peculiar '. facts and • circumstances of this case will be served only if the minor is re'moved from the unhealthy ·atmosphere of home life and is placed in a Boarding House v. :here 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 mo. ther: 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. G. 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 bas 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 SUPREME cotilit REPOP. fs [i9&jJ ; s. c. ll. Mr. Bbandare learned counsel for the respondent (the father of• the minor) bas raised the following co~tentions : · 1; In deciding the ques\ion of custody of a minor,· the Court wiU no doubt be guided by the consideration of the minor's welfare but in considering the question of the welfare of the minor, 8 the Court. should see the minor to ascertain the. wishes of the minor before deciding the qu~stion 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 decfsion on the ' question of custody of the minor. In support of this 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 parti· cular. Home influence has considerable importance to the mibor in properly shaping her life and future. Removal of the minor from. home and placing her in any Boarding Scl)ool, however, good and .. eminent the institution may be, will not enure to the benefit kEMI! COOltt ltl! Pokts [J 983] 1 s. c. lt. 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 ble(llish, 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 chatteis; nor are they mere. playthings for their parents.

AbMlute 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 conrt in case of a dispute between the mother and the father, is expected to strike a just and woper balance between the requirements of welfare of the minor children and the rights of their respective parents, over them. The approach of the leacaed 1ingle Judge, in our view, was correct and we ag;~e with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds, which we ar~ 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 pecilliar 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 /espondent's contention that the Court unde~ the Divorce Act had granted custody of the two younger ff children to the wife on the ground of their being of tender age, no longer holds good and that, therefore, their custody TllRITY llosiim v. imsmAM (A. N. Sen, J. i. I must be handed over to him appears to us to be miscon- • . . ceived. The age of the go to show that the niinor 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 iyill 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 Ccurt 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 ca&e' 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 ;ire 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. Io a happy home. the children are free from any' kind oS unhappy tensi ted by the Division 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 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 . b~en ·to reduce II bright, happy and sensible child to a state of complete misery; and, the extreme psychological strain on the sensible mind of the little ·c girl has caused almost a near nervous breakdown. When the atmosphere in a house, vitiated and rendered su~charge(I 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 bet;veen her parents for each of whom she has great affection, the healthy and normal growth of the chili:! 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 tensi~n. 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 tensfon 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 iaken is fully supported by the report of the Social Welfare Expert. The report of the Social "'. elfare Expert, though not binding on ,the Court is entitled to weighty consideration. :n the instant case, the Expert has ma e a good institutio'\'. S~e ~~& 90 SUPREME COURl REPORTS [1983) l S,C,R. 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 an 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 JI 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 C, 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 J! ppreciate 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 ho111e 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 tQ the brother to meet the minor. . In the result the appeal succeeds.

We set aside the judgment and order passed by the Bombay High Court allowing the custody of the child to the father. We pass lhe 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 dau(lhter Gospi till Gospi reaches th<: age of J6 ~ears, · TilkiT~HOSlllE v. imSHiAM (A. N. Sen, J. J ...... We also give the foUO'wing further dir~. ctions :_:_ . , I. The child Gospi, the daughter· of the appeilant and the respondent shaII be aIIowed to continue her . education in the Kimmins High Court School at Panchgani. I· 2. · The parents will b. e at liberty to meet the daughter li 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 3.

nd other' relations and friends. · 4. When the. school closes for. any vacation ·the girl will ( live with the fathet for the first half of the vacation 1 and th~re~fter will live with the mother during the · secoui! ' half ohhe vacation.. The father· wiII arrange to bring the girl from ~is 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 obt. aioin3 an·y' prior · order from this Court on. notice io the appeilant. The \ father will posi. ti~ely and punctuaIIy . hand over · the chHdto the mother on. the expiry ,of the period of· the first hal( of. the vaca(ion. at the mother's place ·of 'residence. . .. ' ) 6. , On the expiry of the vacation the mother is directed t()·take:the. child back to the sch. o<il at Panchgani and ·entrust her. to. the custody... of the Principal 'or 'the Sch~ol. . .

I These directfons will remain iit force, unless otherwise ordered by this Court, as long as the minor ·ocispi does not reach the' age of 16 y~ars. · · · .. . 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 car~. :~It/appears from the inland• \, .. stJPREME cotJRT REPORtS [i983] I s. c. R. letter card that the inland letter card contains the photostat copy <if 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 tbe 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 tbe,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 wliich 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 contuined 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 fetter 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 lette°Fs were sent from the address of her father.

· We do not propose to set -0ut 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 amongsi 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 Jristice 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 THRfrY HOSHIE v. HoSHIAM (A. N. Sen, J. ) 93 photoslat· ·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 I ' 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 froin th~ address of the father.

These letters have been written in inland air letter cards containing the photostat copy of the letter to the Chief Ju~tice 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 011r 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·4. isposing 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 indepenaent volition of her own and she expresses different kind of wishes in different situations under the influence and domination -of ofhers. 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 con_sideraiion 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 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 affcctfon for the ,. ' daujlhter should appreciati: that his daughter is indeed . fortunate J 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.

lf 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 educatio. n in a good boarding institution in an environment which is otherwise free from unhealthy atmosphere of stress arid strain from which she had been suffering for the last few years. She should also appreciate • that her upbringing and educati'on iti 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 ~eceived 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 'l! 'other brought the girl back t<i the school and the girl was happy iii school arid in the first monthly report' for the months of May and June, the girl has done very well irt her studies and secured 65% marks with 7th position. We direct that this letter of the Principal alsv tci be kept in the records of the proceedings of this appeal. S. R. Appeal allowed.