CITATIONS ON CUSTODY OF CHILD

Compiled by Adv Mir Nagman Ali,

Bombay High Court, Nagpur Bench, Nagpur

9028401027

SOME IMPORTANT CITATIONS ON CUSTODY OF CHILD

 

IRFAN SHEIKH VS MUMTAJ SARFANI

1999 AIR(Bom.) 25 : 1998 (4) Bom.C.R. 815 : 1998 (3) Mh.L.J. 583 :

 

Code of Civil Procedure, 1908, Secs. 114 & 151---Mohammedan Law---Custody of girl child---Relevance of welfare of the child---Father seeking custody of the girl child on the ground that wife has married a stranger and thus under Mohammedan Law disqualified for having custody of the child--

 

Held, there is no hard and fast rule that custody of child in such case cannot remain with the mother. Custody of girl child is necessary to be with mother in welfare of the child. Mohammedan Law does not say that welfare, interest and wishes of the child should not be looked into. Child is aged 7/8 years and has on her own discretion preferred to stay with mother rather than the father. Custody with the mother upheld.

 ASHOK DHAROD VS NEETA DHAROD

2001 AIR(Bom.) 142 : 2001 (2) Bom.C.R. 502 : 2001 (2) Mh.L.J. 115 :

 

Held, welfare of minor is prime consideration for custody of the child. In formative years of child mother is the first teacher which can teach clean habits to the child as also interaction with mother pays rich dividends. Father has not cared for the child over the years and only when petition claiming maintenance is filed, he has come up with plea for custody of child. (Paras 2, 8 & 9)

 

Held, powers of Court under Article 227 of the Constitution can be exercised only in cases of grave dereliction of duty or flagrant violation of law. It is not appellate or revisional power. Conclusions of trial Court are reasonable and cannot be interfered with. (Para 14)

 

ANITA KACCHBA VS KRISHNAKUMAR KACCHBA

2003 AIR(Bom.) 323 : 2003 (2) All.M.R. 861 : 2003 (5) Bom.C.R. 182 : 2003 (3) Mh.L.J. 484

 

Guardians and Wards Act, 1890, Secs. 7 & 8-Natural guardian-Entitlement of maternal grand mother of ward vis a vis natural guardian father to be appointed as guardian-Relevant considerations-Petition filed by maternal grand mother for appointment as a guardian of minor grandson aged about 6 years-Contention that petitioner has taken care of welfare of minor child right from his birth respondent father is an accused in a criminal case is not a fit person for being appointed as guardian respondent is not interested in taking care of the minor and has no inclination to look after the welfare of minor-Contra contentions are false and devoid of merits-Petitioner is more interested in financial aspects and she is not entitled for custody or guardianship in preference to the respondent who is the natural guardian-

 

 Held, provision of Act is wide enough to entitle a person other than the natural guardian to maintain application and Court while considering that application should keep in mind paramount interest and welfare of child. Petitioner is competent to maintain application and having regard to all attending circumstances, appointed as guardian. A.I.R. 1992 Ker. 277; A.I.R. 1979 Bom. 156 relied upon. 2001(8) S.C.C. 552 distinguished and held not applicable. (Para 9)

 

RALPH CABRAL VS RILLEY DIAS

2004 (4) All.M.R. 54 : 2004 (6) Bom.C.R. 332 :

 

Guardians and Wards Act, 1890, Secs. 7, 10, 11 & 17-Appointment of guardian-Welfare of minor a predominant factor-Minor deserted by parents, and paternal grand father, living with maternal grand parents, who took care of all his needs including schooling-Maternal grand-father applying to be appointed as guardian as school was demanding whereabouts of parents and their signatures school threatening expulsion of minor because of these technicalities

  

Held, it will be in interest and welfare of minor that petitioner be appointed and declared as guardian till minor attains majority. Besides as all the related ingredients of sections 7, 10, 11, 17 of the Act have been complied with substantially, it is necessary to pass order without delay. A.I.R. 1987 S.C. 3 relied on. (Paras 11 & 12)

 

J PANIGRAHI VS SAMEERA AMJAD

2005 (Supp.1) Bom.C.R. 447 : 2005 (1) Mh.L.J. 1017 :

 

Constitution of India, Art. 226 - Habeas Corpus Petition - For production of abandoned child in orphanage and seeking custody of same - Contention that child was given by plaintiff in adoption and therefore, they are estopped from seeking its custody from  orphanage - Court finding that consent of minor mother (plaintiff I) had been obtained by coercion by her parents (defendant 1 and 2) and that directions of Apex Court in A.I.R. 1984 S.C. 469 for such cases have not been properly followed by lower Court which decided matter ex rival affidavits only. Directed that lower Court decide the matter after recording evidence of the parties. (Paras 12, 13, 23, 24, 25 & 26)

 

SHEILA DAS VS PR SUGASRI

2006 AIR(SC) 1343 : 2006 AIR(SCW) 965 : 2006 (2) All.M.R. 163 : 2006 (2) Bom.C.R. 524 : 2006 DGLS(SC) 115 : 2006 (2) JT 482 : 2006 (3) Mh.L.J. 567 : 2006 (2) Scale 388 : 2006 (3) SCC 62 : 2006 (2) Supreme 169 :

 

Guardians and Wards Act, 1890, Secs. 7 & 25 - Hindu Minority and Guardianship Act, 1956, Sec. 6

- Custody of minor - Daughter of 12 years - Removed from custody of respondent-husband who is lawyer by appellant wife who is doctor without informing him - Petition for custody - Confirmed upto High Court - Challenged - Contention, minor girl would soon attain puberty when she would need guidance and instructions of women to enable her to deal with physical and emotional changes - Contra, providing all amenities and keeping in mind fact that girl child was attaining age of puberty, had arranged with his sister, who was retired head mistress - Child made preference to be with father

  

Held, no reason to consider respondent ineligible to look after minor. After having obtained custody, respondent not neglected minor or to look after her need. Child appears to be happy in respondent's company. Respondent appears to be financially stable and not disqualified in any way from being guardian of minor child. Interest of minor will be best served if she remains with respondent but with sufficient access to appellant to visit minor at frequent intervals but not disturb her normal studies and activities. 1992(1) K.L.T. 818; 2004(4) Bom.C.R. (S.C.)927; A.I.R. 1941 Bom.

 

Syyad Sabdarali Sy. Nyajali   Versus Shahistabegum Sayyad & ors

2007 (5) AIR Bom R 753 : 2007 (5) All.M.R. 351 : 2007 (5) Bom.C.R. 36 : 2007 (6) Mh.L.J. 532 :

 

Guardians and Wards Act, 1890, Sec. 25 - Mohammedan Law - Custody of minor children - Custody was with father, as per trial Court order of ADJ it was given to mother  - Appeal against - Spouses are Mohammedan and living separately - Contention, that father is whole time busy cannot look after them properly - Contra, that father is  financially stable, has not remarried and can look after well - Trial Court observed that mother being ill it is difficult for her to get remarried whereas father can remarry and can look after children well - This view of trial Court is based on conjectures, because father has still not married - In context of minor's custody provisions of personal law, special enactment and other factor like age, sex, religion and character have to be seen

 

 Held, as per Mohammedan Law  for custody of child upto age of 7 years and for female child till she attains puberty, mother is proper guardian. This right is there even if she is a divorce, but till she gets remarried. This view is affirmed in this Court's decision in 1996(1) Bom.C.R. 553. In concept that minor's wish should be decisive factor is not correct. Court is not to go by mere wishes of minor who cannot take own decisions. Child Sayyad Danish be given to custody of appellant father if he files an undertaking that he will get him admitted in a standard school and will be looked after well. Appellant will furnish his progress card to mother periodically. Appeal as to custody of two other minor children is dismissed and said children will remain with mother. (Paras 12, 13 & 15)

 ANJALI KAPOOR VS RAJIV BAIJAL

2009 AIR(SC) 2821 : 2009 AIR(SCW) 4302 : 2009 BCI 441 : 2009 DGLS(SC) 646 : 2009 (5) JT 685 : 2010 (1) Mh.L.J. 2 : 2009 (6) Scale 597 : 2009 (7) SCC 322 :

 Guardian & Wards Act, 1890 -- Child Custody -- High Court directed the Custody to father as a natural guardian -- Held -- But that right is not absolute an paramount consideration should be given to the welfare of minor Child -- Child has remained with grand mother for long time and is growing up well in an atmosphere which is conducive to her growth -- Diverting the environment may not proper at this stage -- Grand mother allowed to retain the custody of child -- Appeal allowed

 SHAMAL BARIDE VS SHARAD BARIDE

2009 (5) AIR Bom R 452 : 2009 (4) All.M.R. 227 : 2009 (4) Bom.C.R. 669 : 2009 (6) Mh.L.J. 573 :

 Guardians & Wards Act, 1890, Sec. 25 - Custody of child - Appellant -wife filed suit seeking partition and possession in property - After this suit, respondent-husband claimed custody of child after 5 years of separation - No reasons assigned - On ground of adultery by wife separated - Held, respondent-husband is unfit to look after children welfare of two children residing with him is already in lurch, as they became average in studies. Respondent is addict, admitted to De-toxican Centre and he is keen in disposing property to satisfy his lust. Welfare of child to be paramount aspect, will be more looked taken care by wife than father. Custody of  minor child can not be restored to father. First appeal by appellant-wife is allowed. Impugned order is quashed and set aside. (Paras 12, 13, 20 & 25)

 MOHAN RAYNA VS KOMAL RAYNA

2010 AIR(SC) 1659 : 2011 (Supp.1) Bom.C.R. 138 : 2010 DGLS(SC) 238 : 2010 (3) JT 561 : 2010 (3) Scale 564 : 2010 (5) SCC 657 :

 Hindu Minoriy and Guardianship Act, 1956, Sec. 6 - Matrimonial discord - Question of custody of minor girl child - Both husband and wife filed separate custody petitions before Family Court - Family Court granted interim custody of child to petitioner-husband pending hearing and final disposal of petition - In appeals Family Court directed custody of minor child to respondent-wife - Respondent-wife challenged order of access made in favour of petitioner-husband - High Court directed custody of minor child should continue to be with her mother hence this SLP - Held, minor child wanted her parents should come together again. Minor child preferred her mother's company as bonding between them is greater than bonding with her father. Having regared to her age and fact that she is girl child. Court viewed minor child requires her mother's company more at this stage. Conditions laid down by High Court regarding visitation rights to petitioner are sufficient. No interference is called for SLP dismissed. (Paras 13, 14 & 15)

 BABITA KALKHOR VS MAH

2012 All.M.R.(Cri) 495 : 2011 (4) Bom.C.R.(Cri.) 488 :

 

Immoral Traffic (Prevention) Act, 1956, Sec. 17(3) - Juvenile Justice (Care and Protection of Children) Act, 2000, Sec. 2(d) - Refusal of Magistrate to give custody of minor girls rescued from Red light (Immoral Traffic) area and directed that girls be sent to Welfare Centre after examining them as to their age and whether they have got any veneral disease - Petition against - Petitioner-mother of two girls seeking custody on ground that they are minor and would need her protection - Contra that relatives may again force them into flesh trade - Held, minor girls rescued under Immoral Traffic Act required to taken utmost care, as they are likely to be coerced into unlawful activities and flesh trade by relatives. Once they are sent to Child Welfare Centre his jurisdiction ends and procedure under Juvenile Justice Act comes into play. Petitioner is therefore at liberty to approach Child Welfare Committee who may consider her request.  2006(1) Bom.C.R.(Cri.) 50 referred to. (Paras 3, 4, 5, 7 & 8)

 

AMOL PAWAR VS STATE OF MAH

2014 All.M.R.(Cri) 2941 : 2014 (2) Bom.C.R.(Cri.) 232 :

 

Constitution of India, Art. 226 - Hindu Minority and Guardianship Act, 1956, Sec. 6 - Petition for habeas corpus - Custody of minor - Anguished father of minor child aged two and half years seeks custody of child who is presently in custody of respondent 6 - Petitioner-father of child is natural guardian - Petitioner was prosecuted for an offence punishable under sections 498-A and 302 of I.P.C. - Petitioner has been acquitted of said offence by judgment of Additional Sessions Judge - Since petitioner has been acquitted and petitioner is natural guardian of minor child, petitioner cannot be deprived from obtaining custody of his minor child - Question as to whether welfare of minor would warrant handing over custody of minor to any other person is a question which can only be decided after evidence of parties is recorded and certainly not in this petition - Held, presently petitioner being father cannot be deprived custody of his minor child. Court accordingly allow this writ petition and make rule absolute by issuing writ of Habeas Corpus directing respondent 6 to hand over custody of minor child Tejas to petitioner. In event custody of minor child is not handed over to petitioner, Court direct respondent State to provide necessary aid to petitioner for taking custody of minor child. Court accordingly direct officer incharge to provide necessary aid to petitioner for taking custody of minor child from respondent 6. (Paras 9 & 10)

 

 

JIGNA MAHESH DEDHIYA VS UOI

2015 (1) AIR Bom R 12 : 2015 (1) All.M.R. 90 : 2015 (2) Bom.C.R. 671 :

 

Hindu Adoption and Maintenance Act, 1956, Secs. 6, 15 & 16 - Issue of Pass Port - Adoptive fathers name on Pass Port - Petition for directions to grant it to petitioners son, name Master Jash Mahesh Dedhia - Previous marriage of petitioner with one Mr. Jayesh Gala was dissolved divorce by mutual consent in 2005 - Custody of her minor son Master Jash Jayesh Gala was with petitioner - On 29-5-2008 she got re-married with one Mahesh Dhanji Dedhia - Master Jayesh has been adopted by said Mr. Dedhia by a deed of Assurance - Petitioner wants change of name of Jash to Jash Mahesh Dedhia - Change has been notified in Gazette of Government on 27-5-2009 - Contention that as per Ministry of External Affairs instructions, name biological father of child continues to subsist even after divorce and when parents have re-married - That it is not possible to leave column of father or mother blank - A Pan Card, Adhar Card, School Identity Card record name as Master Jash Mahesh Dedhia - Held, in this case legal effect of deed of adoption executed by biological father (Mr. Jayesh Vallabhji Gala) in favour of adoptive father Mr. Mahesh Dhanji Dedhia (petitioners Husband on re-marriage) becomes adoptive father and guardian. Consideration of deed of adoption is completely absent in communication of respondent 2. Adoption duly executed between parties creates a presumption that adoption has been made in compliance with provisions of Act unless disproved. Hence petition is allowed with directions to respondents to accept application of petitioners minor son Master Jash Mahesh Dedhia and it be recorded in Pass Port without insisting on compliance of directions contained in communication dated 6-5-2014. Application to be decided within 45 days. (Paras 8, 9, 10, 11, 14 & 15) 

 

 

ROXNA SHARMA VS ARUN SHARMA

2015 (4) AIR Bom R 87 : 2015 AIR(SC) 2232 : 2015 AIR(SCW) 2925 : 2015 (4) ALD(SC) 57 : 2015 (2) All.M.R. 978 : 2015 (4) ALT(SC) 33 : 2015 (2) Bom.C.R. 568 : 2015 DGLS(SC) 188 : 2015 (7) JT 380 : 2015 (4) PLR 243 : 2015 (2) Scale 488 : 2015 (8) SCC 318 : 2015 (3) Supreme 649 :

 

Hindu Minority and Guardianship Act, 1956, Sec. 6 - Guardians and Wards Act, 1890, Sec. 26 - Petition for custody of minor child and temporary injunction from taking forcible possession of child by appellant-mother - Mother holds a Master of Arts degree and is a Tenured College Professor and allegation of her suffering from Bi-polar disorder had not been persuasively proved and in any event, did not disqualify her to custody of her son - Father is allegedly an alcoholic and a drug-addict who had joined a drug rehabilitation clinic, and was also a member of Narcotics Anonymous (N.A) - Father had been previously married and was not gainfully employed - Social worker in her report indicated that child is extremely comfortable and happy with mother but becomes agitated at sight of his father when he has to return to him - Father, without  notifying or taking permission of Civil Judge, leaving its jurisdiction along with child, prima facie, tantamount to contempt of Court and violation of section 26 of G & W Act - Held, nothing presented by father, or placed on record discloses that mother is so unfit to care for  infant as justifies departure from statutory postulation in section 6 of H.M.G. Act. Visitation rights succinctly stated are distinct from custody or interim custody orders. Essentially they enable parent who does not have interim custody to be able to meet child without removing him/her from custody of other parent. If a child is allowed to spend several hours, or even days away from parent who has been granted custody by Court, temporary custody of child stands temporarily transferred. Temporary custody of child transferred to appellant-mother with direction that both shall not leave territorial jurisdiction of trial Court without prior leave. Visitation rights given to respondent-father. Orders temporary till Civil Judge decide application pending before him. (Paras 2, 14, 17 & 20)

 SUMIT FOGLA VS SHRADHA FOGLA

2015 (5) AIR Bom R 48 : 2015 (5) All.M.R. 501 : 2016 (1) Bom.C.R. 715 : 2015 (6) Mh.L.J. 700 :

 Family Courts Act, 1984, Secs. 19(1) & 7 -  Code of Civil Procedure, 1908, Sec. 115 - Jurisdiction - Respondents conceded to jurisdiction of Family Court at Wayne U.S.A. - Proceedings in Family Court of Wayne are filed earlier than proceedings in Family Court at Akola in India - Held, impugned order is an interlocutory order and therefore, remedy of appeal under section 19(1) of Family Courts Act, would not be available. Consequently, petition has to be entertained on merits. By applying principle of comity of Courts, Family Court at Akola should restrain itself from exercising jurisdiction and entertaining proceedings filed by respondent. Not proper on part of respondent to proceed with her petition before Family Court at Akola, India simultaneously after submitting to jurisdiction of Court at Wayne, U.S.A. Point of jurisdiction of Family Court at Akola in India to deal with matter, does not arise. Impugned order set aside. (Para 8)

 Sreeniwasagopalan Vs Meenakshi

2015 (5) All.M.R. 370 : 2015 (6) Bom.C.R. 16 : 2015 (6) Mh.L.J. 281 :

 Guardian and Wards Act, 1890, Secs. 7 & 12 - Protection of Women from Domestic Violence Act, 2005, Sec. 23 - Interim maintenance - Family Court order - Opposed on ground that there is no jurisdiction under section 7 of Act to grant interim maintenance - Order for grant of partial access to child is also under challenge - Prayer for maintenance was rejected because it has been granted under Domestic Violence Act - Contention that there is no express provision for grant of interim maintenance - Held, under section 12 of Act, Court has power to order production of minor and grant interim protection of person and property of minor. Provision of section 12 are of wide amplitude and no restricted meaning can be given to same. As to visitation rights Family Court has gradually increased duration. It cannot be said to be against interest of minor. Welfare of child has to be given prima importance. Hence no case for interference with orders. (Paras 11, 12, 14, 16 & 17)

 Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam, 2010 10 SCC 314,

 in the facts of that case, has taken a view that the father is guardian of minor child until he is found unfit to be a guardian of minor. But in the matter of custody of a minor child, paramount consideration is welfare of minor and not rights of parents or relatives.

 Athar Hussain Vs. Syed Siraj Ahmed and others, 2010 2 SCC 654,

  the Supreme Court held that welfare of children is sole and single yardstick to assess comparative merit of parties contesting for custody. Stability and consistency in affairs and routines of children are important considerations for change of custody of minors in interim custody proceedings.

 Vikram Vir Vohra Vs. Shalini Bhalla, 2010 4 SCC 409,

 the Supreme Court held that, welfare of child is of paramount importance in matters relating to child custody and may have primacy even over statutory provisions. Child custody being a very sensitive issue, custody orders are always considered interlocutory orders capable of being modified keeping in mind needs of the child. Such orders even when based on consent can be varied if welfare of child so demands

 Mohan Kumar Rayana Vs. Komal Mohan Rayana, 2010 5 SCC 657,

 the Supreme Court held that wishes of minor need to be given due weightage which in instant case had been done by impugned judgment by upholding order of Family Court directing custody of child to continue with mother.

 Gaurav Nagpal Vs. Sumedha Nagpal, 2009 1 SCC 42, 

"The principles in relation to the custody of a minor child are well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the "welfare of the child" and not rights of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of minor."