Mohan Kumar Rayana vs Komal Mohan Rayana

2

2. The petitioner and the respondent got married

in Hyderabad on 11th August, 2000. A girl child,

Anisha, was born on 2nd March, 2002. The nuclear

family, along with the mother of the petitioner-

husband, resided together at Chamboor, Mumbai till

July, 2004 when, for whatever reason, the

respondent-wife left the matrimonial home to stay

with her parents at Bandra. On 24th November, 2005,

with the help of police personnel from Chamboor

Police Station, she took away Anisha from the

custody of the petitioner's mother. The petitioner

recovered the custody of the daughter on 30th

November, 2005 and this resulted in both the

husband as well as the wife filing separate Custody

Petitions before the Family Court in December,

2005. On 20th December, 2005, the Family Court

granted weekend access/visitation right to the

respondent-wife and by a subsequent order dated 15th

September, 2006. the Family Court granted interim

custody of the child to the petitioner-husband 3

pending hearing and final disposal of the Custody

Petition. The child remained in custody of the

petitioner-father between November, 2005 and 2nd

February, 2007, when the husband was directed to

make over the custody of the child to the

respondent-wife and since then she has been in the

custody of the respondent-wife.

3. Two appeals being Family Court Appeal No.29 of

2007 and Family Court Appeal No.61 of 2007 were

filed by the petitioner-husband and the respondent-

wife respectively. The Family Court Appeal No.29

of 2007, which was filed by the petitioner-husband,

was directed against the judgment and order of the

Family Court directing that custody of the minor

child be made over to the respondent-wife. Despite

the finding that during the period when Anisha was

in the petitioner's custody she had been well

looked after and cared for and the petitioner had

dutifully discharged his parental responsibility 4

towards her. In the other appeal, the respondent-

wife challenged the order of access made in favour

of the petitioner-husband on every alternate

weekend and to share 50% of the School Vacations

with the petitioner. In fact, at one stage this

matter also once appeared before us and certain

specific directions were given regarding the manner

of access of the petitioner-husband to Anisha.

While disposing of the pending appeals, the

Division Bench of the High Court had occasion to

consider the legal and practical approach regarding

custody of the minor in the light of the well-

established doctrine that in these cases, the

welfare and interest of the minor was the paramount

consideration. Having dealt with the relevant

provisions of the Hindu Minority and Guardianship

Act, 1956, since the parents as also the minor is a

Hindu and while passing the final order the

Division Bench was fully alive to the fact that

under Section 6 of the above Act the father is the 5

natural guardian of the person of the minor during

his minority. Despite the said legal position, the

High Court, after carefully considering the various

other aspects conducive to the child's welfare, and

despite the interim order of custody in favour of

the petitioner-husband, chose not to interfere with

the order of the Family Court and directed that the

custody of minor Anisha should continue to be with

her mother, the respondent herein, and that

sufficient access provided to the petitioner-father

would meet the ends of justice. The petitioner's

prayer for Anisha's custody, therefore, was

rejected and being aggrieved thereby, the

petitioner-husband has filed the instant Special

Leave Petition.

4. On behalf of the petitioner-husband it was

urged that the judgment and order of the High Court

suffered from various infirmities. It was

submitted that having found that Anisha had been 6

well looked after during the period of petitioner's

custody and the respondent-wife was trying to

poison the child's mind against the petitioner and

having also held that from the psychiatric

evaluation made that the respondent-wife had a

manipulative personality, apart from having a

tendency towards psychosis which needed medical

attention, the High Court erroneously chose note to

interfere with the order of the Family Court

directing custody of minor Anisha to be made over

to the respondent-wife. It was further urged that

the High Court had not properly appreciated the

fact that when the respondent-wife left the

matrimonial home in July, 2004 to pursue film and

television career, she left Anisha behind when she

was only 2 years and 4 months old, thereby

virtually abandoning the child when she needed her

mother's care the most. For more than 2 years she

did not have any contact with Anisha till in May,

2005 she forcibly removed Anisha from her paternal 7

grandmother's custody. It was submitted that the

respondent-wife was so bent upon pursuing a career

in films and television that she had no qualms

about leaving a 2= year old baby girl who needed

her attention and motherly affection.

5. Mr. Shyam Divan, learned Senior Advocate, who

appeared with Dr. A.M. Singhvi, learned Senior

Advocate, for the appellant, submitted that the

final conclusion of the judgment and order of the

High Court was against the grain of the findings

therein regarding the petitioner's ability to look

after the welfare of the minor child. Mr. Divan

urged that both the parties were subjected to

psychiatric evaluation on the directions of the

High Court and in all the reports, and, in

particular, in the report dated 20th September,

2007, submitted by Dr. Haridas, who was the Head of

Department of Psychiatry, JJ Hospital, Mumbai, the

respondent was diagnosed with a histrionic 8

personality disorder of a nature that rendered her

unfit for having custody of the child. It was

pointed out that in the said report it was also

mentioned that the respondent-wife was highly

manipulative and readily spoke lies even for

trivial matters and showed trends of psychosis. On

a comparative assessment of both the parties, the

report concluded that it would not be in the

interest of the child to keep her in the custody of

respondent-mother and that, on the contrary, the

petitioner-father was more fit and capable to

undertake the upbringing of the child. Mr. Divan

submitted that even in the second report submitted

on 22nd November, 2008, it was stated that there was

no evidence to revise the recommendations made in

the earlier report. Mr. Divan submitted that

despite the opinion of the medical experts and the

Court's own findings that the child was being

manipulated, tutored and poisoned against the

petitioner-husband by the respondent-wife, the High 9

Court, as mentioned earlier, had erroneously chosen

not to interfere with the order of the Family Court

and in the ultimate analysis allowed the custody of

the minor child to remain with the respondent-wife.

6. It was also submitted that in the face of the

opinion of experts, the Family Court ought not to

have relied upon the statements made by the

Counsellors appointed by it or on the evidence of

Shridhar Khochare, the Secretary of the Society

where the parents of the respondent resided, or the

evidence of Dr. Vivek Hebar who had also seen the

respondent-wife at the school where Anisha was

studying. It was submitted that as against the

opinion of Dr. Anjali Chhabaria, wherein it was

clearly stated that Anisha had confided in her that

the respondent was mad and was not good, the Family

Court ought not to have given undue importance to

the report of Mrs. A.R. Tulalwar who had

interviewed Anisha on 13th January, 2006. It was 10

also submitted that the attitude of the respondent-

wife to block all interaction between the

petitioner and the child in order to alienate the

child completely from the petitioner and to deprive

her of the petitioner's love and affection as a

father, was also a factor which went against the

respondent being given custody of the minor. Mr.

Divan submitted that obsession of the respondent-

wife for exclusive custody of the minor child was

commented upon by the High Court and the very fact

that she has also filed an appeal only with regard

to 50% access given to the petitioner-husband

during the minor's school vacations, also made her

obsession for exclusive custody, to the detriment

of the child's interest, very clear. It was

submitted that a parent who poisons the child's

mind against her father does not act in the child's

welfare and should not, therefore, be entrusted

with the custody of the child. Mr. Divan submitted

that the minor child requires love and care of both 11

the parents and even if the relationship between

the two are disrupted, the child should not be

deprived of a meaningful relationship with both the

parents. It was urged that while the wishes of the

minor are to be considered seriously in deciding a

matter of custody, the same was not the sole

criteria and it would have to be seen as to who

would be more suitable for the upbringing of the

child, who, till November, 2005, when the child was

about 3= years' old, did not even make an attempt

to meet the child and was prepared to sacrifice the

welfare of the child in order to pursue a film and

television career. Mr. Divan submitted that in

view of the conduct of the respondent and her

denial of access to the minor despite the orders of

this Court, the respondent should not be allowed to

enjoy the fruits of her conduct.

7. In this regard, Mr. Divan referred to the

decision of this Court in Gaurav Nagpal vs. Sumedha 12

Nagpal [(2009) 1 SCC 42], wherein this Court, inter

alia, held that the paramount consideration of the

Court in determining the question as to who should

be given the custody of a minor child, is the

"welfare of the child" and not rights of the

parents under the 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 should also be noted. They are equal, if

not more important than the other. When the Court

is confronted with conflicting statements made by

the parents, each time it has to justify the

demands and has not only to look at the issue on a

legalistic basis but human angles are also to be

considered as relevant for deciding the issues. In

the facts of the said case where the father had

flouted the orders of the Court in keeping the 13

custody of the minor child with him, this Court

observed that he cannot be a beneficiary of his own

wrongs and the said fact cannot be ignored while

considering the father's claim that the child had

not been living with him since a long time. It was

also observed that in child custody matters there

should be a proper balance between the rights of

the parents and the welfare of the child and in

such circumstances, the choice of the minor is also

an important consideration. Mr. Divan submitted

that in the face of overwhelming evidence that the

respondent should not be entrusted with the custody

of the minor child, both the Family Court as well

as the High Court quite inexplicably decided that

the interest of the minor would be best served if

custody was given to the respondent. It was

submitted that if the welfare and future interest

of the minor was to be taken into consideration,

the order of the Family Court as affirmed by the

High Court, was liable to be set aside and the 14

custody of the minor child should be made over to

the petitioner.

8. The submissions made by Mr. Shyam Divan were

firmly opposed by Ms. Meenakshi Lekhi, learned

Advocate, who appeared for the respondent-wife.

Learned counsel submitted that the allegation that

the respondent-wife had abandoned her minor child

was incorrect, since in March, 2005, when she left

her matrimonial home, she took Anisha with her in

terms of an arrangement between the petitioner and

herself. Ms. Lekhi submitted that this aspect of

the matter had been examined at some length by the

learned Judge, Family Court, Mumbai at Bandra in

his judgment dated 2nd February, 2007 and the

allegation of the petitioner-husband that there was

no communication between the respondent and the

minor daughter stood contradicted by the evidence

on record. In fact, the learned Judge, Family

Court had gone on to observe that the contrary 15

stand taken by the petitioner-husband and the

positive statement brought out in his cross-

examination was sufficient to dislodge his case

that the respondent-wife had abandoned the child.

9. Ms. Lekhi also submitted that Mrs. A.R.

Tulalwar, Marriage Counsellor appointed by the

Principal Judge, Family Court, to ascertain the

wishes of the minor child for the purpose of access

by the respondent-wife, had in her final report

indicated that the child shared a normal

relationship with the respondent-wife and

considering her age she needed her mother's company

to strengthen the bond between them. It was also

observed that the child was familiar with the

mother and access would have to be worked out even

outside the Court. In her second interview report,

Mrs. Tulalwar further observed that Anisha share a

very good relationship with her mother and was

willing to spend time with her mother, and, in 16

fact, this was her need at her age. Ms. Lekhi also

referred to the interview which the Court had had

with the child on 15th November, 2006, whereupon the

Court concluded that as far as the wishes of the

child were concerned, she did not want to leave her

father as well as her mother, as she loved both of

them very dearly and wanted them to reunite.

10. Ms. Lekhi submitted that the allegations

regarding abandonment of the child by the

respondent-wife were not, therefore, believed by

the learned Principal Judge, Family Court, which

ultimately felt that it would be in the best

interest of the minor if her custody was made over

to the respondent-wife.

11. As far as the allegations regarding denial of

access by the respondent-wife to the petitioner to

meet Anisha is concerned, it was urged that between

2007 till January, 2009, the petitioner made no

attempt to exercise visitation rights given to him 17

and did not make any attempt to meet the child. On

the other hand, the petitioner who is very

successful businessman and who has to go abroad

very often, was not really interested in the

welfare of the child since a suggestion had also

been made by Dr. Haridas that if the petitioner-

husband was not willing to accept custody of the

child, she could always be sent to a boarding

school.

12. Ms. Lekhi submitted that the order passed by

the learned Principal Judge, Family Court, Mumbai

at Bandra, as affirmed by the High Court, did not

warrant any interference and the Special Leave

Petitions were liable to be dismissed.

13. Having the interest of the minor in mind, we

decided to meet her separately in order to make an

assessment of her behavioural pattern towards both

the petitioner as well as the respondent. Much

against the submissions which have been made during 18

the course of hearing of the matter, Anisha

appeared to have no inhibitions in meeting the

petitioner-father with whom she appeared to have an

excellent understanding. There was no evidence of

Anisha being hostile to her father when they met

each other in our presence. From the various

questions which we put to Anisha, who, in our view,

is an extremely intelligent and precocious child,

she wanted to enjoy the love and affection both of

her father as well as her mother and even in our

presence expressed the desire that what she wanted

most was that they should come together again.

However, Anisha seems to prefer her mother's

company as the bonding between them is greater than

the bonding with her father. Anisha is a happy

child, the way she is now and having regard to her

age and the fact that she is a girl child, we are

of the view that she requires her mother's company

more at this stage of her life. There is no doubt

that the petitioner is very fond of Anisha and is 19

very concerned about her welfare and future, but in

view of his business commitments it would not be

right or even practicable to disturb the status quo

prevailing with regard to Anisha's custody. The

conditions laid down by the High Court regarding

visitation rights to the petitioner are, in our

view, sufficient for Anisha to experience the love

and affection both of her father and mother. There

is no reason why the petitioner, who will have

access to Anisha on holidays and weekends, cannot

look after her welfare without having continuous

custody of her person. As has repeatedly been said,

in these matters the interest of the minor is of

paramount importance to the Court which stands in

loco parentis to the minor. Of course, the wishes

of the minor are to be given due weightage, and, in

the instant case, the same has been done.

14. We, therefore, see no reason to interfere with

the order passed by the learned Principal Judge, 20

Family Court, Mumbai at Bandra, as affirmed by the

Bombay High Court.

15. The Special Leave Petitions are, accordingly,

dismissed and all interim orders are hereby

dissolved.

..................

..............................J. (ALTAMAS KABIR)

................................................J. (G.S. SINGHVI)

................................................J. (CYRIAC JOSEPH) New Delhi Dated:06.04.2010.