Welfare Principle

Source: The Hitavada      Date: 23 Oct 2017 11:13:28

The Supreme Court found that both the children were very comfortable in the company of their mother. They have expressed their desire to stay with their mother. The court also felt that welfare of children lies in allowing the appellant to retain the custody of the children.

JUSTICE A.K. Sikri and Justice Ashok Bhushan, at the Supreme Court, have in the judgement of the case – Purvi Mukesh Gada v. Mukesh Popatlal Gada & Another, delivered on September 4, 2017, held that the Bombay High Court was not justified in restoring custody of children to the respondent-father. After hearing the lawyers of both the parties, the apex court has been of the opinion that the matter was not dealt with by the HC in right perspective.

Before supporting its comments with reasons, the court took note of certain developments from June 17, 2015, the date on which the respondent himself had handed over the children to the appellant, till the passing of the orders by the HC. It was also necessary to state the events which took place during the pendency of these proceedings. Whether the respondent had handed over the custody of the children to the appellant on a humanitarian gesture or not, fact which is not in dispute is that Tanay had failed in his Grade IX examinations and he was to reappear for the same. It is also a fact that it is the guidance and tuition of the appellant that Tanay passed the examinations on reappearance and could be promoted to Grade X.

Another fact which needs to be noted is that when the appellant left the matrimonial home, Tanay was not residing with the parties. He was admitted in a boarding school in Coimbatore, a far-away place from Pune. No doubt, the respondent claimed that intention in admitting Tanay in a boarding school in Coimbatore was that he should get best education as the school in which he was admitted is a prestigious educational institution. At the same time, it is also a fact that Tanay was not in the physical company of his father on day-to-day basis. It is also a harsh reality that he was not doing well in studies during the period his legal custody was entrusted to the respondent. His overall performance in most of the subjects was dismal and he had failed even in Grade IX. At that stage when, within a few days, there was a re-examination, handing over Tanay, along with Varenya to the appellant, without even any court order, lends credence to the version of the appellant that the purpose was to give appropriate tuition to Tanay by the appellant so that his academic year is not wasted.

Another fact which needs to be emphasised at that stage though the custody of Varenya was also with the respondent and request of the appellant to hand over interim custody of the children did not prevail with the Additional ACMM, who rejected this request through orders of December 28, 2014 and March 4, 2015.

Even Varenya was admitted in a boarding school by the respondent thereafter. This fact also gives some credence to the version of the appellant that because of his pre-occupation in the business or otherwise, the respondent was not in a position to take personal care of the children and, therefore, he put both the children in the boarding schools.

After the children joined the appellant, they were admitted to a school in Mumbai. Though tremendous progress made by Tanay in studies was noticed by the HC, it lightly brushed aside the said factor, with the observation that if the children were not doing well earlier, blame cannot be put on the respondent, as it could be due to disputes between the parents. In the process what is ignored is that in spite of the said dispute still subsisting, the academic performance of the children, while in the custody of their mother has gone up tremendously.

When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Supreme Court and the court interacted with them. While issuing notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgement of the HC were stayed.

At the same time, the respondent was given access to these children as well as visitation rights. Notice was issued on March 4, 2016. During pendency of these proceedings for more than a year, the respondent had met the children regularly with the grant of visitation rights. The court met the children again, just before final hearing. Tanay is 17 years old and Varenya is 13. At this age, they are capable of understanding where their welfare lies.

The Supreme Court found that both the children were very comfortable in the company of their mother. They have expressed their desire to stay with their mother. The court also felt that welfare of the children lies in allowing the appellant to retain the custody of the children. Circumstances as explained provide adequate reasons for taking this course of action.

Children at discernible age of 17 and 13 years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during the court’s interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly. They never showed any reluctance in this behalf.
At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders on July 1, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore the custody to him.

Same course was adopted by the Sessions Court while dismissing the appeal of the respondent on August 6, 2015 and affirming the order of the court below.
The HC has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM on December 28, 2015 and March 4, 2015, thereby refusing the custody of the children to the appellant.

In this process what is ignored by the HC was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in the mid-term of the academic session. Be that as it may, it was incumbent upon the HC to find out the welfare of the children, as at that time, when it was passing the order, apart from discussing the ‘welfare principle’, the HC has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely giving custody to the appellant or to the respondent, is better and more feasible.

A holistic approach in this behalf is to be undertaken. Scales tilt in the favour of the appellant, when the matter is examined from that point of view.The Supreme Court has allowed the appeal after setting aside the impugned order of the HC of February 17, 2016 and restored the orders passed by the Court of Sessions, Greater Mumbai, which had affirmed the order passed by the 38 th Court of Additional ACMM, Ballard Estate, Mumbai.