1992 JTR(SC) 382
1992 AIR(SC) 1447 ; 1992 AIR(SCW) 1528 ; 1992 20 AllLR 743 ; 1993 2 CivCC 318 ; 1993 Supp CivCC 318 ; 1992 2 CurCC(SC) 55 ; 1993 2 DMC 1 ; 1993 1 GLH 387 ; 1993 1 GLR 583 ; 1992 2 HinduLR 234 ; 1992 3 JT 195 ; 1993 1 RCR(Cri) 529 ; 1993 1 RRR 413 ; 1992 1 Scale 1107 ; 1992 3 SCC 573 ; 1992 SCC(Cri) 778 ; 1992 1 UJ 741 ; 1992 KHC 892 ; 1992 2 KLT(Online) 1022
SUPREME COURT OF INDIA
KULDIP SINGH AND K. RAMASWAMY, JJ.
Kirtikumar Maheshankar Joshi, Appellant
Versus
Pradipkumar Karunashanker Joshi, Respondent
Civil Appeals Nos. 1952-53 of 1992 (arising out of S.L.P. (Civil) Nos. 3522-23 of 1992), D/-4-5-1992.
Act
Referred
:CONSTITUTION OF INDIA : Art.136
GUARDIANS AND WARDS ACT : S.8, S.7, S.12, S.17
INDIAN PENAL CODE : S.498
(A) The Guardians and Wards Act provisions govern the adjudication of custody, where Section 8 addresses interim relief, Section 7 outlines the duties of guardians, Section 12 defines the court's powers in ward matters, and Section 17 provides for the disposal of appeals regarding custody. These sections apply alongside Section 498A of the Indian Penal Code, which addresses cruelty by a husband or his relatives, and Article 136 of the Constitution, which empowers the Supreme Court to grant special leave to appeal, thereby enabling this Court to exercise supervisory control over the custody dispute and ensure the welfare of the minors.
(B) The natural guardian is entitled to preferential custody, but this right is subordinate to the welfare and best interests of the child; the court must consider the child's wishes, the conduct of the parties, and the necessity of a stable, cruelty-free environment; interim relief under the Act can be modified based on fresh circumstances; and an order disposing of an appeal also determines the closure of related proceedings.
Facts of the case:
A husband and wife resided at Rajkot and had two children. The wife died due to chemical poisoning, and the husband faces criminal charges under Section 498A IPC. Following her death, the children moved to live with their maternal uncle. The maternal uncle filed a petition under the Guardians and Wards Act seeking custody, alleging the father to be unfit, and obtained an interim injunction. The father filed a separate custody application, leading to jurisdictional conflicts and stays. A High Court single judge transferred the case from Jamnagar to Rajkot, but the matter was stayed. The children, now adolescents, appeared before the court and expressed a clear unwillingness to live with their father, stating they were happy with their maternal uncle.
Findings of Court:
The court observed that both children were intelligent, mature, and articulate about their well-being, and it was not in their interest to place them with their father at that time. The court emphasized the children's expressed wishes, their current happy adjustment with the maternal uncle, and the need to protect them from further trauma. The court also noted that the father remains the natural guardian but his preferential right must yield to the welfare principle.
Issues:
Whether the father, as the natural guardian, is entitled to custody of the minor children in the face of their expressed unwillingness and the available environment with the maternal uncle; whether the High Court had jurisdiction to transfer the case; and whether the custody proceedings before the District Judge should be closed.
Ratio Decidendi:
The welfare of the minor children is the paramount consideration, and their expressed wishes, combined with the assessment of their emotional well-being and the suitability of the caregiving environment, justify denying custody to the father and granting custody to the maternal uncle, while allowing supervised contact to preserve the parental relationship.
Result:
Custody of the children is awarded to the maternal uncle, with liberty for the father to meet them on holidays or with prior consent, and the related proceedings are closed, subject to future modification if circumstances change.
(A) The Guardians and Wards Act provisions govern the adjudication of custody, where Section 8 addresses interim relief, Section 7 outlines the duties of guardians, Section 12 defines the court's powers in ward matters, and Section 17 provides for the disposal of appeals regarding custody. These sections apply alongside Section 498A of the Indian Penal Code, which addresses cruelty by a husband or his relatives, and Article 136 of the Constitution, which empowers the Supreme Court to grant special leave to appeal, thereby enabling this Court to exercise supervisory control over the custody dispute and ensure the welfare of the minors.
(B) The natural guardian is entitled to preferential custody, but this right is subordinate to the welfare and best interests of the child; the court must consider the child's wishes, the conduct of the parties, and the necessity of a stable, cruelty-free environment; interim relief under the Act can be modified based on fresh circumstances; and an order disposing of an appeal also determines the closure of related proceedings.
Facts of the case:
A husband and wife resided at Rajkot and had two children. The wife died due to chemical poisoning, and the husband faces criminal charges under Section 498A IPC. Following her death, the children moved to live with their maternal uncle. The maternal uncle filed a petition under the Guardians and Wards Act seeking custody, alleging the father to be unfit, and obtained an interim injunction. The father filed a separate custody application, leading to jurisdictional conflicts and stays. A High Court single judge transferred the case from Jamnagar to Rajkot, but the matter was stayed. The children, now adolescents, appeared before the court and expressed a clear unwillingness to live with their father, stating they were happy with their maternal uncle.
Findings of Court:
The court observed that both children were intelligent, mature, and articulate about their well-being, and it was not in their interest to place them with their father at that time. The court emphasized the children's expressed wishes, their current happy adjustment with the maternal uncle, and the need to protect them from further trauma. The court also noted that the father remains the natural guardian but his preferential right must yield to the welfare principle.
Issues:
Whether the father, as the natural guardian, is entitled to custody of the minor children in the face of their expressed unwillingness and the available environment with the maternal uncle; whether the High Court had jurisdiction to transfer the case; and whether the custody proceedings before the District Judge should be closed.
Ratio Decidendi:
The welfare of the minor children is the paramount consideration, and their expressed wishes, combined with the assessment of their emotional well-being and the suitability of the caregiving environment, justify denying custody to the father and granting custody to the maternal uncle, while allowing supervised contact to preserve the parental relationship.
Result:
Custody of the children is awarded to the maternal uncle, with liberty for the father to meet them on holidays or with prior consent, and the related proceedings are closed, subject to future modification if circumstances change.
M.N.SHROFF, M.V.GOSWAMY, Priya Hingorani, R.P.BHATT, T.U.Mehta, TANUJA SHIL
JUDGMENT
Special leave granted.
2. Pradipkumar Karunashanker Joshi was married to Kumudlata. A son named Vishal was born on July 20, 1979 and a daughter Rachna alias Rikta on August 12, 1981. Unfortunately, Kamudlata died on January 12, 1991 and the cause of death mentioned in the postmortem report was "cardiorespiratory arrest due to some chemical poisoning................" The husband Pradipkumar is facing criminal charge under S. 498A Indian Penal Code. On February 17, 1991 the police recorded statements of the children.
3. Pradipkumar and family were residing at Rajkot. After the death of Kumudlata, Vishal and Rikta left their fathers house and went to Jamnagar to live with the family of their mothers brothers/sisters. Since then both the children are living with their maternal uncle Kirtikumar Maheshankar Joshi.
4. Kirtikumar, brother of Kumudlata deceased, filed an application before the District Judge, Jamnagar under the Guardians and Wards Act (Act) on February, 13, 1991 seeking a declaration that Pradipkumar, the father of the children, was unfit to be the guardian of Vishal and Rikta and a further prayer that he be appointed as guardian of the minor children. An interim injunction was granted by the District Judge, Jamnagar.
5. Pradipkumar also filed an application on February 17, 1991 before the District Judge at Rajkot for the custody of his minor children. The Judge passed an ex parte order deputing a Commissioner to produce the minor children in his Court on February 18, 1991. According to the Commissioner, Kirtikumar gave an undertaking that he would produce the children in the Court of District Judge at Rajkot on February 19, 1991 at 11.00 a.m. The children were, however, not produced in the Court and instead an appeal against the ex parte order of the District Judge, Rajkot was filed before the Gujarat High Court at Ahmedabad. A learned single Judge of the High Court passed a consent order, according to which,. the District Judge at Rajkot was required to pass fresh order after hearing both the parties. The consent order, however, could not be complied with as Kirtikumar filed an application, under S. 10 of the Civil Procedure Code, before District Judge Rajkot for the stay of the proceedings in that Court on the ground that similar proceedings were pending, from an earlier date, before the District Judge at Jamnagar. The District Judge Rajkot stayed further proceedings by its order dated April 22, 1991 and reported the matter to the High Court under S. 14 of the Act.
6. Aggrieved by the order of the District Judge Rajkot dated April 22, 1991 Pradipkumar filed a Civil Revision Application before the High Court. A single Judge of the High Court by its order dated July 24, 1991 decided the said Civil Revision and transferred the case pending before the District Judge, Jamnagar to the Court of District Judge, Rajkot. Kritikumar filed a Letters Patent Appeal against the judgment of the learned single Judge but the same was dismissed by a Division Bench of the High Court on January 9, 1992 on the ground that the Letters Patent Appeal was not maintainable against the judgment of the learned single Judge. This appeal via Special Leave Petition is by Kirtikumar.
7. Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present. Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/ 25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing illtreatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage. We, therefore, dispose of the appeal by issuing the following directions:-
(I) We hand over the custody of Vishal and Rikta, the minor children, of Pradipkumar and Kumudlata deceased, to the appellant Kirtikumar who is the maternal uncle of the children.
(II) Pradipkumar, father of the children, shall be permitted by the appellant to meet the children on holidays or on any other day with prior notice to the appellant. Pradipkumar can take the children out of the appellants house for recreation, entertainment or for shopping with the concurrence of the children.
(III) If in due course Pradipkumar wins over the love and affection of the children he would be at liberty to move this Court for the modification of the order regarding custody of the children.
(IV) We set aside the judgment and order dated July 24, 1991 of the learned single Judge of the High Court in Civil Revision Application 613/91.
(V) We further direct that the proceedings under the ct regarding the custody of the children before District Judge Jamnagar and the Joint District Judge Rajkot be treated as closed.
(VI) We give the parties liberty to move this Court for modification of this order or for seeking any directions regarding the custody and the well-being of Vishal and Rikta, if there is change in the circumstances or for the welfare of the children.
8. We, therefore, dispose of the appeal with the above directions. No order as to costs.
Order accordingly.
For Citation : AIR 1992 SC 1447