REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2628 OF 2009

Smt. Anjali Kapoor ……….Appellant

Versus

Rajiv Baijal ……..Respondent

JUDGMENT

H.L. Dattu,J.

Leave granted.

1)This appeal is directed against the judgment and order passed by the

High Court of Judicature at Indore in Miscellaneous Appeal No. 750 of

2004 dated 03.08.2007. By the impugned judgment, the High Court has

directed that the custody of the child be handed over to the

respondent/father.

2)The facts of case in brief are: - the respondent/Rajiv Baijal, had got

married to the appellant’s daughter/Meghana on 16.01.1998 and lived

together in Pune (Maharashtra). Smt. Meghana went to Indore to the

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appellant’s residence for delivery of the child. She was admitted in

Noble Hospital, Indore and gave birth to a female child on 20.05.2001,

but she did not survive to see the new born baby. As the child was born

premature, she was kept in incubator in the hospital for nearly 45 days.

After discharge from the hospital, the infant was brought to the residence

of the appellant, and she was named Anagh. Add to the agony, just in a

span of two months, appellant lost her husband also on 29.07.2001.

3)The Respondent herein filed an application under Guardian and Wards

Act before the Family Court, inter-alia asserting that being the father of

the child Anagh, he is her natural guardian and therefore, entitled to the

custody of the child. In support of the claim made, the respondent had

asserted before the Family Court that Anagh was not properly looked

after by the appellant and it was perilous for the child to continue in the

custody of the appellant. The respondent had also contended that after

the child was brought to the residence of the appellant he was repeatedly

requesting the appellant and her family members to hand over the

custody of the child to him, since the appellant is unable to take care of

the welfare of the minor child.

4)In the reply filed, the appellant had contended, that, the respondent had

not come to see his daughter even once when the child was in the

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intensive care unit in the hospital. She had further contended that the

respondent is living separately from his parents and he has to be away

from his home town most of the time in a month in view of the nature of

the job he is involved in. It was also contended that the financial position

of the respondent is not good and he had taken loans from several

persons, and in order to repay the same, on many occasions, he had

asked for financial help from the appellant and her family members. In a

nutshell, her claim before the Family Court was that it is not conducive

for the welfare of the child to be in the company of the respondent.

5)The Family Court, Indore in its order dated 18.3.2004, has observed

that, it cannot be concluded that the respondent although has borrowed

money from several persons, will not be in a position to bring up her

daughter and bear her educational expense. The Court has also taken

note of the fact that the child/Anagh is taken care of by appellant’s

brother-in-law, who has two grown-up children, and therefore, it cannot

be said that the respondent will not be in a position to take care of the

welfare of the child. Therefore, giving priority to the welfare of minor

child, it is advisable to give custody of minor child - Anagh to the

respondent, where she will be looked after well by respondent and his

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family members. Aggrieved by the said order, the appellant had carried

the matter to the High Court, by filing Misc. Appeal No.750 of 2004.

6)The High Court in its judgment has held, that there are no compelling

reasons on the basis whereof the custody of the child should be denied to

her father/respondent. Respondent has been making efforts right from

the infancy of the child for guardianship of the child which was strongly

resisted by his mother-in-law. The Court has also taken note of the fact

that, the appellant has lost her husband and has, therefore, suffered a

great financial set back. Therefore, for better upbringing and welfare of

the child, her custody should be entrusted to her father. Aggrieved by the

said judgment, appellant is before us.

7)Notice was ordered to be issued to the respondent on 28.09.2007 to

appear before the court on 16.10.2007. Since the same was returned

unserved, a fresh notice came to be ordered. Dasti, in addition was also

permitted for effecting service of the special leave petition on the sole

respondent. In view of the affidavit of dasti notice filed by learned

counsel for petitioner, he was permitted to take out notice of the special

leave petition by publishing the same in two newspapers which has wide

circulation in Pune (Maharashtra). Even this was carried out by the

petitioner by publishing the notice of special leave petition in

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“Sandhyand” and “Free Press” which has wide circulation in Pune

(Maharashtra). In spite of such publication, the respondent has not

appeared before this court either in person or through his learned

counsel. Therefore, while deciding this appeal, we did not have the

assistance of either the respondent nor his learned counsel.

8)The learned counsel for the appellant would contend, that, the appellant

is financially sound as she has a flourishing garment business and is

residing in a joint family. Presently Anagh is being looked after by the

appellant’s family, and she is studying in a well known public school and

is leading a happy life. The counsel would further contend, that, the

respondent has meager income of Rs. 5,500 p.m. and will not be able to

take good care of Anagh. It is further submitted that the respondent’s

mother is not well and also his father is suffering from High Blood

Pressure and Asthama and they will also not be in a position to help the

respondent to take care of the daily needs of the minor child. The counsel

would further contend that respondent and any of his family members or

relative, after passing of the impugned order till date never contacted the

appellant to enquire about the welfare of Anagh. It is further submitted

that the respondent has lost interest not only in the case but also in his

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daughter, since he has contracted second marriage sometime during the

year 2007.

9) The question for our consideration is, whether in the present scenario

would it be proper to direct the appellant to hand over the custody of the

minor child/Anagh to the respondent.

10)Under the Guardian and Wards Act, 1890, the father is the guardian of

the minor child until he is found unfit to be the guardian of the minor

female child. In deciding such questions, the welfare of the minor child

is the paramount consideration and such a question cannot be decided

merely based upon the rights of the parties under the law (See Sumedha

Nagpal v. State of Delhi, (2000) 9 SCC 745).

11)In the case of Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC

840, this Court has observed that, the principle on which the Court

should decide the fitness of the guardian mainly depends on two factors:

(i) the father’s fitness or otherwise to be the guardian, and (ii) the

interests of the minors. This Court considering the welfare of the child

also stated that, the children are not mere chattels: nor are they mere

playthings for their parents. Absolute right of parents over the destinies

and the lives of their children have, in the modern changed social

conditions, yielded to the considerations of their welfare as human

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beings so that they may grow up in a normal balanced manner to be

useful members of the society.”

12)In Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr.

(AIR 1987 SC 3), this Court has observed that whenever a question

arises before Court pertaining to the custody of the minor child, the

matter is to be decided not on consideration of the legal rights of the

parties but on the sole and predominant criterion of what would best

serve the interest and welfare of the child.

13)At this stage, it may be useful to refer to the decision of Madras High

Court, to which reference is made by the High Court in the case of

Muthuswami Moopanar (AIR 1935 Madras 195), wherein the Court has

observed, that, if a minor has for many years from a tender age lived with

grand parents or near relatives and has been well cared for and during

that time the minor’s father has shown a lack of interest in the minor,

these are circumstances of very great importance, having bearing upon

the question of the interest and welfare of the minor and on the banafide

of the petition by the father for their custody.

14)In our view, the observations made by the Madras High Court cannot

be taken exception by us. In fact those observations are tailored made to

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the facts pleaded by the appellant in this case. We respectfully agree with

the view expressed by the learned Judges in the aforesaid decision.

15)In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was

observed that, “… The dominant matter for the consideration of the court

is the welfare of the child. But the welfare of a child is not to be

measured by money only, or by physical comfort only. The word welfare

must be taken in its widest sense. The moral or religious welfare of the

child must be considered as well as its physical well-being. Nor can the

ties of affection be disregarded.”

16)In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that an

application by a parent, through the medium of a habeas corpus

proceeding, for custody of a child is addressed to the discretion of the

court, and custody may be withheld from the parent where it is made

clearly to appear that by reason of unfitness for the trust or of other

sufficient causes the permanent interests of the child would be sacrificed

by a change of custody. In determining whether it will be for the best

interest of a child to award its custody to the father or mother, the Court

may properly consult the child, if it has sufficient judgment.”

17)In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The

New Zealand Court (cited by British Law Commission, Working Paper

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No. 96) stated that “welfare is an all-encompassing word. It includes

material welfare; both in the sense of adequacy of resources to provide a

pleasant home and a comfortable standard of living and in the sense of

an adequacy of care to ensure that good health and due personal pride are

maintained. However, while material considerations have their place

they are secondary matters. More important are the stability and the

security, the loving and understanding care and guidance, the warm and

compassionate relationships that are essential for the full development of

the child’s own character, personality and talents.”

18)Bearing these factors in mind, we proceed to consider as to who is fit

and proper to be the guardian of the minor child Anagh in the facts and

circumstances of this case. In the present case, the appellant is taking

care of Anagh, since her birth when she had to go through intensive care

in the hospital till today. The photographs produced by her along with

the petition, which is not disputed by the other side would clearly

demonstrate, the amount of care, affection and the love that the

grandmother has for the child having lost only daughter in a tragic

circumstances. She wants to see her daughter’s image in her grand child.

She has bestowed her attention throughout for the welfare of reminiscent

of her only daughter, that is the minor child which is being dragged

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from one end to another on the so called perception of judicial

precedents and the language employed by the legislatures on the right

of natural guardian for the custody of minor child.

19)Anagh is staying with the appellant’s family and is also studying in

one of the reputed school in Indore. It must be stated that the appellant

has taken proper care and attention in upbringing of the child, which is

one of the important factor to be considered for the welfare of the child.

Anagh is with the appellant right from her childhood which has resulted

into a strong emotional bonding between the two and the appellant being

a woman herself can very well understand the needs of the child. It also

appears that appellant, even after her husband’s demise, is financially

sound as she runs her own independent business.

20)On the other hand, considering the evidence of the respondent, it

seems to us that since he has borrowed money from several persons and

since he has a meager income he may not be in a position to give

comfortable living for the child . In spite of notices issued to him, he has

not appeared before the Court personally or through his counsel which

shows his lack of concern in the matter. It is also brought to our notice

that he has got married for the second time and has a child too, and the

minor child might have to be in the care of step mother, specially the

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 father being a businessman, he has to be out of the house frequently on

account of his business.

21)Ordinarily, under the Guardian and Wards Act, the natural guardians

of the child have the right to the custody of the child, but that right is not

absolute and the Courts are expected to give paramount consideration to

the welfare of the minor child. The child has remained with the

appellant/grandmother for a long time and is growing up well in an

atmosphere which is conducive to its growth. It may not be proper at

this stage for diverting the environment to which the child is used to.

Therefore, it is desirable to allow the appellant to retain the custody of

the child.

22)In view of the above discussion, we allow this appeal and set aside the

impugned order. We permit the appellant to have the custody of the

child till she attains the age of majority. No order as to costs.

…………………………………J.
[TARUN CHATTERJEE]

…………………………………J.
[ H.L. DATTU ]
New Delhi,
April 17, 2009.

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