K.M. Vinaya Vs B.R. Srinivas (Karnataka HC) (MFA. NO. 1729/2011 (G & M))
21. The records clearly disclose that the respondent is also having utmost love and affection towards his son. From the last eight years, he is litigating for his son, which shows that he has great love and affection for him. The child is aged about 12 years as on today. The child is not capable of expressing any intelligent preference. In view of the interim custody of the child, the child has acquaintance with family. He can stay along with the family members of the father as well as the mother. The respondent has paid more than Rs.1,72,000/- towards medical and educational expenditure of his son. Hence, the respondent can also take care of his son as the appellant is taking. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian, however, the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. Thereafter, the father is also entitled for custody of the child.
22. The Hon’ble Supreme Court in various judgments held the welfare of the child as paramount consideration while determining the issues relating to the custody of the child. There should be a proper balance between the rights of the respective parents and the welfare of the child. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. The child requires love and affection of both father and mother. The Hon’ble Supreme Court further held that the court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surrounding, but over and above physical comforts. When the court is confronted with the conflicting demands made by the parents, the court has not only to look at the issue on legalistic basis, but human angles are also relevant for deciding such issues. The object and purpose of the Act is not merely physical custody of the minor, but due protection of the right of the Ward, health, maintenance and education.
23. The Hon’ble Supreme Court in the judgment reported in AIR 2013 SC 102 (supra) has observed that an order of custody of minor children is required to be made by the Court treating the interest and welfare of the minor to be the paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of the minor. What must be emphasized is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is crucial and ultimate consideration that must guide the determination required to be made by the court.
24. In order to ascertain the desire of the child, personal interaction was made in our Chamber. The child expressed his desire to go along with his mother which may be due to the pressure of the mother or that the child is all along with the mother and also that the child is only 12 years old. The evidence of the parties clearly discloses that both the appellant as well as the respondent are in a position to take care of the minor child. Admittedly, the respondent is residing in the joint family along with his parents, brother and sister’s
children. The child can grow in the warmth atmosphere of the joint family. It will help in the sustainable growth of the child, whereas the minor has to stay alone with his maternal grand parents in the appellant’s house. The father is a friend, philosopher and guide to the child. The overall development of the child can be possible with the love and affection of the father. No allegation has been made regarding ill-treatment of the child in the father’s house and congenial atmosphere is available in the house of the respondent for the sustainable growth and grooming of the child.
25. The Hon’ble Supreme Court in a judgment reported in 2008 AIR SCW 4043 in the case of Mausami Moitra Ganguli V/S Jayant Ganguli held as under:
“The principles of law in relation to the custody of a minor child is well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.
Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the back ground of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."
26. The Hon’ble Supreme Court had an occasion to consider the legal position regarding the father’s right for the custody of the child vis-à-vis the welfare of the minor in : Rosy Jacob V/S A.Chakramukkal case reported in AIR 1973 SC 2090 and it has been held as under:
“In our opinion, the dominant consideration for making orders under Section 25 is the welfare of the minor children and in considering this question, due regard, of course, has to be paid to the right of the father to be the guardian and, also, to all other relevant factors having a bearing on the minor’s welfare…………. The father’s fitness has to be considered, determined and weighed pre dominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for the children – which every normal parent has …… The father’s fitness from the point of view just mentioned cannot override consideration of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children - - being normally the earning member and head of the family - - but the Court has, in each case, to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education.”
27. The appellant has produced the latest report from Dr.Gowrishankar of BGS Hospital which clearly discloses that the minor son is maintaining very good health and he is taking participation in the extra curricular activities, sports and games. He is also one of the participants of the Football team in the school. As on today, he is aged about 12½ years and reaching the age of adolescence. At this stage, the guidance and friendliness of the father is also required. The minor child is living with the appellant from the day of his birth and she has taken care of the well-being of the child with love and affection that by itself would not entitle her the custody of child. Father’s care and love has a powerful and positive impact upon the development and health of a child. In addition, numerous studies have found that children who live with their father are more likely to have good physical and emotional health to achieve academically and more likely to exhibit self control and pro-social behaviour. It is important that the minor has his father’s care and guidance, at this formative and impressionable stage of his life. Nor can the role of the father in his upbringing and grooming to face the realities of life be undermined. It is in that view father’s care is important for the child’s healthy growth. Parental touch and influence of other parent will enable the two to stay in touch and share moments of joy, learning and happiness with each other. Hence, we are of the opinion that both the appellant and respondent are entitled for custody of the child for the sustainable growth of the minor child. We are of the view that the minor son shall be given under the custody of the respondent from 1st January to 30th June and under the custody of the appellant from 01st July to 31st December every year and they shall take care of the well-being and education of the minor son till he attains the age of majority. The education and other expenditure have to be shared equally by the appellant and respondent. Both will have visitation right on every Saturday and Sunday. When the minor is under the custody of the appellant she shall not prevent telephonic contact between the father and the son or video conferencing between the two if it is possible. She should not induce hatred towards father in the mind of minor child, though there are differences between the husband and wife. After the minor son attaining majority, it is open for him to take his own decision. This arrangement will not affect the interest of the child, since the child is acquainted with the family members of his father due to interim custody, during the pendency of the petition before the family court as well as the appeal before this court. Apart from that on the basis of the joint memo filed by the parties, the custody of the child was given to the respondent/father during Deepavali festival.
The respondent/father is entitled to the custody of the minor child from 01st January to 30th June and the appellant/mother is entitled to custody of the child from 01st July to 31st December of every year, till the minor son attains the age of majority. The appellant and respondent are directed to maintain education and other expenditures of their son in equal proportion and both will have visitation rights during Saturdays and Sundays. The minor child shall be allowed to use the telephone or video conference with father or mother, as the case many be.