Kumar V. Jahgirdar vs Chethana Ramatheertha
Bench: S V Patil, D Dharmadhikari – Case No: Special Leave Petition (civil) 4230-4231 of 2003 – Date of Judgment: 29/01/2004
Bench: S V Patil, D Dharmadhikari – Case No: Special Leave Petition (civil) 4230-4231 of 2003 – Date of Judgment: 29/01/2004
In these two appeals, the subject matter of dispute between the
married couple, now separated by decree of divorce obtained on mutual consent
under the provisions of Hindu Marriage Act, 1955, is their rival claim to the
exclusive custody of their daughter Aaruni who is now little above 9 years of age
and is prosecuting her education in a well-known school in the city of
Bangalore where the parties reside.
After obtaining divorce on mutual consent, the wife Smt. Chethana Ramatheertha is re-married to
Mr. Anil Kumble, a Cricketer of national and international repute. The Family
Court of Bangalore by its judgment dated 20.4.2002, after considering the
evidence led by the parents of the child, came to the conclusion that as the
wife is re- married to a famous cricketer and is leading a different style of
life involving frequent tours with her second husband for attending cricket
events, there is likelihood of child developing distance and dislike for her
natural father. The exclusive custody of the child was directed to be given to
the natural father with only right of visitations to the mother on every week
on Sunday between 10 A.M. to 8 P.M. and to keep the child with her overnight on
two Sundays in a month with prior intimation to her former husband.
The High Court, in appeal, by its impugned judgment dated
27.1.2003, has, however, taken a different view and reversed the judgment of
the Family Court. On the basis of evidence on record, the Division Bench of
High Court has formed an opinion that in the absence of compelling reasons and
circumstances, the mother cannot be deprived of the company of the child to the
detriment of the interest of the child. The High Court, therefore, set aside
the judgment of the family court and directed that the mother should continue
to retain exclusive custody of the child with visitation rights to her former
husband. The former husband is allowed to keep the child on week ends either on
Saturday or Sunday from morning till evening and he can also be with the child
during half the period of vacations in the school. The stay of child with each
of them during half of the vacations, is to be shared by the two parents under
mutual agreement. The father is also allowed to visit the child as and when he
likes with the prior intimation and mutual arrangements with the mother. The
parties are also given liberty to seek necessary modifications in the
arrangement evolved by the High Court.
For deciding the controversy regarding the custody of the child,
only few more facts are relevant and required to be stated.
The parties were married in the year 1986 at Mysore and had a
married life for more than 12 years. The child
Aaruni was born to them on 07.12.1994. When the child was little about
two years old, the wife took a job in Trans Oceanic Travels. Their marriage
broke down in the year 1998 when the wife left her matrimonial home and sent a
notice through her lawyer that she was unwilling to live with her husband. On a
joint petition, filed by the parties in the Family Court for dissolution of
marriage by mutual consent, a decree of divorce was passed on 17.4.1999. The
separated parents, in accordance with the conditions of divorce by consent,
agreed to their appointment as joint guardians with periodic custody of the
child. They also agreed to keep the child alternatively in every week. As per
the mutual arrangement agreed between the couple, the wife took custody of the
child for a week in the year 1999. She soon thereafter got re-married to famous
cricketer Mr. Anil Kumble on Ist July,
1999 and went out of the country with her second husband leaving the child
under the custody of her former husband. On return from abroad with her second
husband, she filed an application in the Family Court on 12.8.1999 seeking
exclusive custody of the child. The Family Court rejected her application and
the High Court, in revision, only granted liberty to the parties to approach
the Family Court for alteration or modification of the terms of consent decree
of divorce. Thereafter, the wife moved a petition again to the Family Court for
altering the conditions of divorce. During pendency of those proceedings, with
the permission of the Family Court, she took the child with her while on tours
with her second husband.
A counter application was filed by the present petitioner/her
former husband Shri Kumar V. Jahgirdar
for exclusive custody of the child on the ground that he being the natural
guardian and having remained unmarried with sole aim to bring up the child in
congenial atmosphere was better suited to be entrusted with her custody. It was
stated that the re-marriage of the wife is detrimental to the welfare of the
child.
The wife from her side filed repeated applications in Family
Court seeking permission to take the child to foreign countries on tours with her
second husband. The Family Court granted such permissions but on certain
conditions.
The wife went up by revision petition to the High Court and the
High Court directed that the child should be placed in the custody of mother
for a continuous period of one year. When the present petitioner/her former
husband appealed, this Court, after hearing the learned counsel appearing for
the parties, by order dated 18.4.2003 made an interim arrangement pending final
orders on the pending applications of the parties before the Family Court,
Bangalore. The mother was allowed to retain custody of the child with
visitation rights granted to the former husband every week on Saturday and
Sunday. It was also directed that during pendency of the cases before the
family court, if the mother is required to go out of the country, she will not
carry the child with her but leave the child in the custody of her former
husband during her absence. The family court was directed to decide the case
within four months.
The family court in its judgment dated 20.4.2002 granted
exclusive custody of the child to the former husband with only right of weekly
visitations to the mother on the grounds inter alia that the mother is
re-married to a famous cricketer whereas the former husband is still unmarried
and his nature of business as a Stock Broker is such that he is able to give
required attention to the rearing of the child. The family court also, on the
basis of apprehensions raised in evidence on behalf of the former husband, came
to the conclusion that custody of child with natural father would rule out
possibility of attempts on the part of the mother and her second husband to
induce or create ill-will in the mind of the child towards her natural father.
The family court also recorded that during long periods when the girl child
lived with her natural father, she herself expressed satisfaction and
happiness.
The wife appealed against the judgment of the family court to
the High Court. The child was interviewed twice by the Hon’ble Judges of the
High Court on 20.11.2002 and 05.12.2002. On the basis of interviews with the
child who is school going and aged about 9 years, the High Court recorded in
its judgment that the child expressed no dislike or negative feelings towards
any of her natural parents or her step father. The High Court after examining
the evidence on record and interviewing the child, came to the conclusion that
in the absence of any compelling or adverse circumstances, the natural mother
cannot be deprived of the exclusive custody of a growing female child. The
judgment of the family court has been upset by giving exclusive custody of the
child to the natural mother with visitation rights on week ends to the natural
father on timings mentioned in the order. Aggrieved by the order of the High
Court, the former husband is, in appeal, before us.
Learned senior counsel, Shri S.S. Javali appearing on behalf of
the petitioner/former husband took great pains by taking us through the record
of the case and particularly the relevant parts of the depositions of the
estranged couple and the second husband of the wife. He severely criticised
certain general remarks and statements made by the High Court in the impugned
judgment such as that ‘mother has an absolute right to keep company of the
child unless deprivation of it is required for compelling reasons’. It is
argued that such an erroneous approach on the part of the High Court, has
resulted in upsetting a just and very well-reasoned judgment of the family
court.
From the arguments advanced on behalf of the former husband,
what we have been able to gather as more important circumstances set up against
allowing the wife to retain the custody of the child inter alia are that the
wife is re-married to a cricket celebrity and has a style of life which
requires frequent foreign tours, exposure to public life and media. There is
also possibility of the child being brain-washed to keep distance from the
natural father. On the behaviour of the child during her interviews on two
occasions, as has been recorded by the High Court Judges, submission made is
that it might have been so due to psychological counselling given to the child.
It is stated that during one of her interviews, a psychologist was found to be
accompanying her to the court before she child entered the Chamber of the
Judges for interview. On behalf of the wife, the learned counsel stoutly denied
any such happening during hearing in court.
On behalf of the former husband, learned counsel then very
strenuously submitted that his client has remained unmarried with one single
aim to rear and bring up his child in a congenial atmosphere of love and
affection which he alone can guarantee. In the present status and style of life
of his former wife, it is submitted that the former husband was rightly held by
the family court to be a preferable parent to keep custody of the child. The
father is also financially well-off and has already acquired movable and
immovable properties as also deposited cash in the name of the child to ensure
best of care and education to her.
We have also heard learned senior counsel, Shri Gopal
Subramanium appearing on behalf of the wife, who has supported the impugned
judgment of the High Court and submits that the past conduct of the wife and
her second husband throughout the proceedings in these cases belies the
apprehension of the former husband that the child’s mind would be poisoned
against him. The apprehension is stated to be completely baseless and
imaginary. Learned counsel assures on behalf of Mr. Anil Kumble, the second
husband of the wife, that he would continue to extend same love to the child
and cooperation to the natural parents as he has been doing throughout in the
past so that the child gets the best of care, affection and education for her
proper upbringing. It is submitted that as has been desired by the High Court
with the conditions imposed in its orders, the parties would faithfully and
sincerely continue with the existing arrangement without any detriment to their
mutual interests and the interest of the child.
After hearing the learned counsel appearing for the parties at
sufficient length and having bestowed our careful consideration to the
observations and conclusions reached by the family court and the High Court in
their respective judgments, we do not find any ground to substantially upset
the judgement of the High Court containing the arrangements made therein for
the custody of the child and the rights of visitation granted to the natural
father.
We make it clear that we do not subscribe to the general
observations and comments made by the High Court in favour of mother as parent
to be always a preferable to the father to retain custody of the child. In our
considered opinion, such generalisation in favour of the mother should not have
been made. We, however, do not find that the judgment of the High Court is
based solely on one consideration that between two parents, the mother always
can claim superior right to retain the custody of the child. The High Court has
taken into consideration all other relevant facts and circumstances to come to
the conclusion that female child of growing age needs company more of her
mother compared to the father and remarriage of the mother is not a
disqualification for it. The conclusion of the High Court seems to be just and
proper in safeguarding the interest of the child.
Without going into the allegations, counter allegations and
misapprehensions expressed against each other, on the paramount consideration
of best safeguarding the interest of the child, in our opinion, the judgement
of the High Court giving exclusive custody of the child to the mother and
visitation rights to the natural father deserves to be maintained with little
modification for the following reasons :-
1. The child is, at present, 9 years of age and on
advent of puberty. This is the age in which she requires more care and
attention of the mother. Mother, at this age of the child, deserves to continue
to keep the custody of the female child. She is reported to have given up her
service and now leading life of a house-wife. The progress report of Aaruni
from the Sophia High School, Bangalore, indicates that she is very good at
studies and has a bright educational career.
2. It is reported that the wife is presently on the
family way. The prospect of arrival of the second child in the family of the
wife is another circumstance which would be in favour of the present child.
3. The petitioner lives alone with his father.
There are no female members living jointly with him although he may have female
relations in the city but that would not ensure constant company, care and
attention to the female child.
4. The petitioner/natural father is a busy Stock
Broker allegedly carrying on his business with aid of on-line computer but it
cannot be said that in the course of his business, he has not to remain out of
residence for attending his office and other business engagements.
5. The apprehension expressed against the second
husband that he might poison the mind of the child and create ill-will towards
natural father is not borne out from the evidence on record. On the contrary,
the second husband in his deposition has made statements evincing a very
cooperative and humane attitude on his part towards the problem of the
estranged couple and the child. We find that apprehension expressed against the
second husband is without foundation. The parents of the child have separated
by mutual consent without making any vicious allegation against each other.
They also agreed under the express terms of the consent decree of divorce to
take responsibility of bringing up their child as her joint guardians. This
gesture of decency and cooperation in jointly looking after the child has to
continue. In this mutual agreement of separated couple, on behalf of second
husband, it is assured to us that he would continue to give his unreserved
cooperation and help and would do nothing as to spoil the relationship or
intimacy of the child with the natural father.
6. The visitation rights given to the natural
father, in the present circumstances, also do not require any modification
because with the passage of time, the growing child should eagerly wait for the
company of his father as a happy and enjoyable moment rather than treat it as a
part of empty ritual or duty. To make visitation rights of natural father
effective and meaningful for proper growth of the child, active cooperation of
both the parents and her step father is expected and we hope it would not be
found wanting from any one of them.
7. Since the mother of the child is married to a
famous cricketer, as and when she leaves the country on tour with her husband
during school days or vacation period of the child without taking the child
with her, in stead of leaving the child to the care and custody of some other
member of the family, the custody of the child during her absence from her home
shall be given to the natural father.
With the above observations and modification, we maintain the
judgment of the High Court. The two appeals are, thus, disposed of. As all the
parties, before us, are highly educated, cultured, of modern outlook, well-off
and having so far conducted themselves decently and courteously towards each
other, we hope, in future as well they will continue same attitude and conduct
for maintaining their cordial relationships and extend full cooperation in
safeguarding the interest of the child in best possible manner.
Looking to the nature of the case and the position of the
parties, they are directed to bear their own costs and expenses incurred in
these appeals.
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