# Ms. Nasrin Begum & Anr v. Prof. Mohd. Sajjad & Anr

- **Citation:** (2022) 10 ILRA 1177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-21
- **Case number:** First Appeal No. 510 of 2022
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-nasrin-begum-anr-v-prof-mohd-sajjad-anr-47686
- **Pages:** 14

## Headnote

Sri
Tarun
Pratap
Singh,
Sri
Komal
Mehrotra, Sri Syed Ahmad Faizan, Sri S.F.A.
Naqvi (Sr. Advocate), Sri Atul Dayal (Sr.
Advocate)

A. Family Law - Custody of child -
Guardians and Wards Act, 1890 - Sections
8, 10, 17(3) & 25 - The principles of law in
relation to the custody of a minor child, as
to the paramount consideration of the
welfare and interest of the child and the
custody not being the rights of the parents
under a statute is well settled. (Para 17)

Children are not mere chattels nor are
they toys for their parents. Absolute right
of parents over the destinies and the lives
of their children has, in the modern
changed social conditions must yield to
the considerations of their welfare as
human beings so that they may grow up in
a normal balanced manner to be useful
members of the society. (Para 18)

The moral and ethical welfare of the child
must also weigh with the Court as well as
its physical well being. (Para 19)

In the present case, the sister (appellant No. 1)
had left her child with her brother and sister-inlaw who are issueless would not deprive her
from the custody of her minor child. The child
has not been legally adopted. The answer to the
question that was considered by the trial court
to give custody of the child to the maternal
uncle and aunt is guided by the wishes of the
child who does not even know as to who her
birth parents are. The family court was swayed
away by the fact that the detachment of the
child from her maternal uncle and aunt who
have brought her up as her own child, would
have perilous effect on the physiology of the
child. Whereas the parents are fighting for the
custody of the child since the child was in a
tender age of five years. It was categorically
stated by the appellants that they were not
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed to meet their child and the respondents
have refused to give back the child despite their
best efforts to find out an amicable solution.
The vehemence of the respondents in not
allowing the child to meet her birth parents is
evident from their resistance in even allowing
the child to see her birth parents once in a year
for 15 days. Several cases including criminal
complaints were filed between the parties
because of the dispute relating to the custody of
the child. (Para 31)

Giving
due
consideration
to
the
circumstances such as ordinary comfort,
contentment,
intellectual,
moral
and
physical development, health, education
and general maintenance of the child as
also the favourable surroundings, it is in
the best interest of the child whose
welfare is our paramount consideration
that she be in the custody of her birth
parents. The reason being that:-

(i) The applicants are biological parents (both
mother and father) of the child. The child as a
human being has a right to know as to who are
her parents and has a legal right to remain in
the custody of her parents till she attains
majority.

(ii) The appellants have other children,

## Text

_Characters 0–39,960 of 49,381. This is a partial read: ask again with offset=39960 for what follows._

10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1177

37. In the circumstances, this petition
succeeds and is allowed. The impugned
judgment and decree dated 14.01.2021
passed by the Additional District Judge,
Court No.3, Jhansi in S.C.C. Revision No.
26 of 2019 as well as the judgment and
decree dated 16.09.2019 passed by the
Judge, Small Cause Court, Jhansi in S.C.C.
Suit No. 3 of 2015 are set aside, except to
the extent of findings upheld by this
judgment. The Judge, Small Cause Court,
Jhansi shall proceed to try and determine
the suit afresh, after hearing the parties and
their witnesses. Considering the fact that
the suit is one of the year 2015 and
occasion has arisen, where a remand has
been made to the Trial Court, it is directed
that the Trial Court shall proceed with the
suit, fixing two dates of effective hearing
every week and decide the suit within a
period of three months of the date of
receipt of a copy of this judgment.

38. Let a copy of this judgment be
communicated to the Judge, Small Cause
Court, Jhansi through the learned District
Judge,
Jhansi
by
the
Registrar
(Compliance).
----------
(2022) 10 ILRA 1177
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

First Appeal No. 510 of 2022
Alongwith
First Appeal No. 485 of 2022

Ms. Nasrin Begum & Anr. ...Appellants
Versus
Prof. Mohd. Sajjad & Anr. ...Respondents
Counsel for the Appellants:
Sri Kavish Suhail, Sri Pradeep Kumar
Chandra (Sr.Adv.)

Counsel for the Respondents:
Sri
Tarun
Pratap
Singh,
Sri
Komal
Mehrotra, Sri Syed Ahmad Faizan, Sri S.F.A.
Naqvi (Sr. Advocate), Sri Atul Dayal (Sr.
Advocate)

A. Family Law - Custody of child -
Guardians and Wards Act, 1890 - Sections
8, 10, 17(3) & 25 - The principles of law in
relation to the custody of a minor child, as
to the paramount consideration of the
welfare and interest of the child and the
custody not being the rights of the parents
under a statute is well settled. (Para 17)

Children are not mere chattels nor are
they toys for their parents. Absolute right
of parents over the destinies and the lives
of their children has, in the modern
changed social conditions must yield to
the considerations of their welfare as
human beings so that they may grow up in
a normal balanced manner to be useful
members of the society. (Para 18)

The moral and ethical welfare of the child
must also weigh with the Court as well as
its physical well being. (Para 19)

In the present case, the sister (appellant No. 1)
had left her child with her brother and sister-inlaw who are issueless would not deprive her
from the custody of her minor child. The child
has not been legally adopted. The answer to the
question that was considered by the trial court
to give custody of the child to the maternal
uncle and aunt is guided by the wishes of the
child who does not even know as to who her
birth parents are. The family court was swayed
away by the fact that the detachment of the
child from her maternal uncle and aunt who
have brought her up as her own child, would
have perilous effect on the physiology of the
child. Whereas the parents are fighting for the
custody of the child since the child was in a
tender age of five years. It was categorically
stated by the appellants that they were not
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed to meet their child and the respondents
have refused to give back the child despite their
best efforts to find out an amicable solution.
The vehemence of the respondents in not
allowing the child to meet her birth parents is
evident from their resistance in even allowing
the child to see her birth parents once in a year
for 15 days. Several cases including criminal
complaints were filed between the parties
because of the dispute relating to the custody of
the child. (Para 31)

Giving
due
consideration
to
the
circumstances such as ordinary comfort,
contentment,
intellectual,
moral
and
physical development, health, education
and general maintenance of the child as
also the favourable surroundings, it is in
the best interest of the child whose
welfare is our paramount consideration
that she be in the custody of her birth
parents. The reason being that:-

(i) The applicants are biological parents (both
mother and father) of the child. The child as a
human being has a right to know as to who are
her parents and has a legal right to remain in
the custody of her parents till she attains
majority.

(ii) The appellants have other children, the child
would grow with her siblings which is a positive
environment being favourable surroundings for
the welfare of the child.

(iii) Knowing her real identity as a human being
is the first right of the child. She must know
who her birth parents are. She must know who
her siblings are. She must know who the
persons are who are fostering her at present.
The child cannot be allowed to live in a
camouflage of her own being. Even an adopted
child within the family sometime faces emotional
turmoil when he is grown up and told about
his/her real parents. The deprivation of the
company or even knowledge about her birth
parents may come as a shock to the child when
she is grown up. The deprivation of the child of
the company of her own siblings may prove to
be a shock for her, later. (Para 32)

In any case, a child as a human being
cannot be deprived of the company of her
birth parents under a concealed identity of
the respondents being her real parents.
The mother who gave birth to the child
cannot be deprived of the company of her
daughter just for the fact that for
sometime the child was given in the foster
care of her maternal uncle and aunt. It is
not about the right of the applicants (the
parents) or the respondents (the maternal
uncle and aunt) rather it is about the right
of the child as a human being. A minor has
a birth right to remain in the custody of her/his
birth parents, who are the best persons on earth
to know the welfare of the child. (Para 34)

B. Proceeding in appointing or declaring
the guardian of a minor the Court shall be
guided by not only the law to which the
minor is subject, but the welfare of the
minor as appears in the circumstances of
the case and if the minor is old enough to
form an intelligent preference, the court
may consider that preference. (Para 22)

In the present case, the maternal uncle and
aunts/foster parents of the child have not acted
in a matured manner in the situation in which
they fall. Their emotions on the one hand and
the welfare of the child on the other are pitted
against each other. The attitude and behavior of
the foster parents in the whole scenario is also
not understandable. Without there being any
legal adoption but only under an arrangement
within the family, the foster parents (the
respondents) should have though fostered the
child as their own but should have allowed the
child to know as to who her birth parents are, to
meet them, to spend time with them and then
take an informed decision, an intelligent
preference as to with whom she wanted to stay,
to spend her childhood. (Para 34)

On overall consideration of the facts of the
present case, in exercise of judicial discretion,
giving paramount consideration to the welfare
of the minor, we are of the considered opinion
that for contentment, intellectual, moral and
physical development of the child, the best
interest of the child is to be in the custody of
her birth parents. The wishes of the child who is
not old enough to form an intelligent preference
cannot prevail over the welfare of the child.
(Para 35)
10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1179
The First Appeal No. 510 of 2022 is hereby
allowed. The First Appeal No. 485 of 2022
is disposed of. (E-4)

Precedent followed:

1. V. Ravi Chandran Vs U.O.I. & ors., 2010 (1)
SCC 174 (Para 7)

2. Guru Nagpal Vs Sumedha, 2009 SCC 42

3. Vivek Singh Vs Romani Singh, 2017 (3) SCC
231 (Para 7)

4. Nil Ratan Kundu & ors. Vs Abhijit Kundu,
2008 (9) SCC 413 (Para 12)

5.
Thrity
Hoshie
Dolikuka
Vs
Hoshiam
Shavaksha Dolikuka, 1983 (1) SCR 49 (Para 16)

6. Rosy Jacob Vs Jacob A. Chakramakkal, 1973
(1) SCC 840 (Para 18)

7. Bimla Devi Vs Subhas Chandra Yadav Nirala,
AIR 1992 Pat 76 (Para 19)

8. Kamla Devi Vs St. of H. P., AIR 1987 HP 34
(Para 20)

Present appeal assails the judgment and
order dated 30.05.2022 passed by the
Additional Principal Judge, Family Court,
Court No. 3, Aligarh.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Heard Sri Pradeep Kumar Chandra
learned Senior Advocate assisted by Sri
Kavish Suhail learned Advocate, Sri Atul
Dayal learned Senior Advocate assisted by
Sri Komal Mehrotra and Sri S.F.A. Naqvi
learned Senior Advocate assisted by Sri
Syed Ahmad Faizan, learned Advocate for
the parties in both the connected appeals.

2. These two connected appeals have
been filed by both sides challenging the
order dated 30.05.2022 passed by the
Additional Principal Judge, Family Court,
Court No.3, Aligarh in Misc. Petition
No.73 of 2019 filed under Section 8, 10 &
25 of the Guardians and Wards Act' 1890
(in short as '1890' Act. The appellants in
First Appeal No.510 of 2022 are applicants
of the misc. case filed under the Act' 1890
praying for custody of the minor child. The
appellant in connected First Appeal No.485
of 2022 are aggrieved by the aforesaid
decision only to the extent of the findings
on issue No.2 where the applicants have
been provided visitation right/custody of
the child for a period of 15 days in one year
during summer vacation in the school of
the minor child till she attains majority.

3. The applicants/appellants are
natural guardians, biological parents of the
child who was about five years of age on
the date of the application seeking custody
of the child. The respondents/appellants in
the connected Appeal No.485 of 2022 are
maternal uncle and aunt of the child, the
respondent No.1 being real brother of the
appellant No.1. As stated in the application
filed by the appellants, the minor child was
born on 16.12.2013 at Jeddah, Saudi Arabia
and a birth certificate was issued by the
concerned authority at Jeddah wherein
names of the applicants/appellants as
parents of the child have been mentioned.
The respondents herein are issue-less.
Initially one Mohd. Zaheer, brother of the
respondent No.2 namely sister-in-law of the
applicants, gave them his minor girl child
for about three months and later took her
away.
The
respondents
went
under
depression on account of the said incident.

4. When the applicants came to India
after birth of their girl child on 11.03.2014,
the respondents expressed their desire to
look after the minor child for sometime so
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
that they may overcome the crisis. It was
then agreed that the minor would be in
custody of the respondents and whenever
the applicants come to Delhi they would be
spending time with their daughter and the
child would remain in touch with her
parents through audio and video calls. On
the request of the respondents, the passport
and birth certificate of the minor child was
handed over to the respondents so that they
may not face any inconvenience in keeping
the child with them. Believing her brother,
the appellant No.1 namely Ms. Nasrin
Begum had signed a written document
wherein custody of the minor child was
given for the time being to the respondents.
The applicants/appellants then left for
Saudia Arabia. It is stated that this
arrangement was made by the appellants
only as humanitarian consideration, to help
brother and sister-in-law of the appellant
No.1 to overcome the emotional crisis
faced by them.

5. In the year 2015, during vacation
when the applicants/appellant came to
India, they felt change in the behaviour of
the respondents. Again in the year 2017,
during vacation, they came to India with
the main object of meeting their daughter
and when they reached at the house of the
respondents, the respondents did not allow
them (the appellants) to meet the child.
Being
family
members,
the
applicants/appellants tried to persuade the
respondents through elders in the family.
The appellant No.1 in the meantime, gave
birth to the fourth child on 07.05.2018.
During this period and thereafter, the
appellant No.1 talked to her brother namely
the respondent No.1 to take her child back
with her to Saudi Arabia and requested
respondent No.1 to give back the passport
of the minor child. The respondent gave
passport and photographs of the minor
child to the appellant No.1 and that with
this conduct of the respondent, the
appellants had no doubt that the respondent
would have no objection to give away the
child. The process of getting visa of the
child was then initiated by the appellant
No.1 and visa was issued from Saudi
Arabia
on
25.07.2018.
When
the
applicants/appellants came to India and
went to the house of the respondents to
meet the child they were not allowed to
enter inside nor were permitted to talk to
the child. The appellant No.1 stayed in
India for about 8 months before moving the
application so that she may persuade the
respondents to give back her daughter.
However, the respondents misbehaved with
the appellant No.1 and then the appellants
were constrained to approach the family
court seeking for custody of the minor
child. The cause of action to institute the
proceedings arose when the respondent had
refused to handover the custody of the
minor child to the appellants.

6. In the written statement filed by the
respondent, it was admitted that the
applicants/appellants are biological parents
of the child. It is also admitted that the
respondents
are
issue-less.
But
the
application was objected with the assertion
that the applicants/appellants had handed
over the custody of the minor child to the
respondent on 11.04.2014 willingly and
now in view of the Section 25 of the Act'
1890, the appellants cannot seek the
custody of the child. It is argued that an
adoption deed was executed by the
appellants to give the minor child in the
custody of the respondents and the
adoption deed was signed by the appellants
out of their own sweet will, which is a
notarized deed. When the child was given
in the custody of the respondents, she was
barely three and a half months. The
respondents looked after the child as their
10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1181
own and she had grown to a six and a half
years old beautiful girl and they cannot
think of separation from the child. The
child is very close to the respondents and is
studying in one of the best school at
Aligarh. The respondents are taking good
care of the child and it is in the welfare of
the child to grow in the custody of the
respondents. It was admitted that there was
no provision for adoption in Muslim
Personal Law but contention is that the said
legal grounds has no bearing on the facts
that the paramount consideration of the
Court in selecting a proper guardian of the
minor child should be the welfare and well
being of the child, which is with the
respondents. On the said pleading and the
documentary and oral evidences filed by
the parties, the issues framed by the family
court were as follows:-

"कबन्दु सोंख्या 1 "क्ा प्राथीगण
प्राथषनापत्र में वकणषत तथ्योों के आधार पर
अवयस्क/नाबाकलग
जैनव
गुफरान
के
बॉयोलोकजकल, नेचूरल
पेरेन्टस होते हुये
अकभरक्षा प्राप्त करने के अकधकारी है ?

कबन्दु सोंख्या-2:- "क्ा प्राथी/वादी
ककसी अन्य अनुतोर् को पाने का अकधकारी है?"

7. The issue No.1 has been decided
against the appellants by the family court
on the ground that taking paramount
consideration of the welfare of the child in
light of the decision of the Apex Court in
V.Ravi Chandran vs Union Of India &
Ors1, Guru Nagpal Vs. Sumedha2, Vivek
Singh Vs. Romani Singh3, it is in the best
interest of the child to remain in the
custody of the respondents. It was opined
by the family court that the children cannot
be treated as chattel/property and the act of
the applicants/appellants in leaving their
three months child in the custody of the
respondents show that they were happy
with the arrangement that the child would
live with her maternal uncle and aunt.
When the respondents looked after the
child of a tender age of three months who
has now grown into a six years old girl, as
an afterthought on account of the dispute
with her brother, the appellant No.1 had
instituted the application seeking custody
of
the
child.
The
Court
had
also
interviewed the child and noted her
statement that she would call maternal
uncle and Aunt as "Abba" and "Ammi" and
stated that she was being looked after well
by them and she wants to stay with them
only. It was also noted that even the
appellant No.2 examined as PW-1, natural
father of the child had stated that he did not
want to take away the child against her
wishes. It was noted that the wishes of the
child to stay with the respondents cannot be
ignored by the Court.

8. It is argued by the learned counsel
for the appellants that the appellants were
desperate to take away their child with
them and made efforts so that the amicable
solution can be found as both the parties
are closely related to each other. The
statement of the father that he did not want
to take away the child forcibly as against
the wishes of the respondents itself shows
that the appellants made efforts to persuade
the respondents to give away their child
which all went in vain and hence they were
constrained to file the instant application.
Even
before
filing
of
the
present
application, Habeas Corpus petition had
been filed before the High Court at Delhi
which was dismissed on the ground of lack
of territorial jurisdiction. It is argued by the
learned counsel for the appellant that the
judicial pronouncement about the welfare
of the child relate to the dispute between
husband and wife namely two biological
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
parents and not an outsider. The term
guardianship denotes the guardianship of a
minor. The Quran is a basic of the law
relating to the concept of guardianship of a
minor. Muslim Personal Law makes a
difference between guardian of a person
and guardian of the property in case of
minor.

9. Guardianship of a person for minor
for custody is given to mother who is de
facto guardian of the child upto the age of
seven years for a male child and in case of
female child till the child attains the age of
puberty as per the Hanafi law. In Shia law,
the mother is a de facto guardian upto two
years for the male child and seven years in
case of female child. In any case, the legal
guardian of a child can only be a person
who is either a natural guardian or a
guardian appointed by the Court. In
absence of a legal guardian, the Court is
entitled to appoint guardian for the
betterment of the minor. Under Muslim
Law the question of guardianship of a
minor is very essential so as to deal with
the right of the minor and his/her property,
if any.

10. Be that as it may, it is argued that
the family court had given a complete goby to the legal principles of appointment of
guardian under the Act' 1890 while
deciding the application moved by the
appellants
who
are
natural/biological
parents of the child. The occasion for
moving application before the family court
arose on account of the fact that the
respondents had refused to give the child in
the custody of her biological parents. It is
argued that the notarized deed claimed as
adoption deed has no sanctity of law and,
moreover, the said arrangement was made
by the appellant out of sheer love and
affection for the issue-less brother and
sister-in-law. Under the said arrangements
between the parties, the appellants were
free to meet their child and to spend time
with her and to take her away without any
permission or consent of the respondent.
The appellants were also free to stay in
touch with their child by calling her
through audio and video mode frequently.

11. The respondents, however, did not
honor their promise and later behaved
strangely in denying entry of the parents
(appellants) in their house to meet the
child. The appellant No.1 had to stay for a
long time in India to persuade the
respondents to allow her to meet the child
and on their denial, the appellants were
constrained to move the family court. On
account of the changed behavior and
attitude to the respondents where they have
not only denied access to the child but also
detached the child from her own parents,
this dispute came to the Court.

12. Sri Atul Dayal leaned counsel for
the respondent, in rebuttal, has heavily
relied upon the decision of the Apex Court
in Nil Ratan Kundu & others vs. Abhijit
Kundu4 to submit that in the matter of
custody of a minor child, as per legal
position
in
India,
the
paramount
consideration for the Court is the welfare of
the child. The Court has to ascertain not
only the welfare but also the wishes of the
child by interviewing the child. He,
therefore, urged that this Court may
summon the child to know her wishes if it
has any doubt about the findings returned
by the family court where the categorical
statement made by the child was noted that
the respondents are her 'Abbu' and 'Ammi'
and she wants to stay with them only. It
was argued that any change in the
arrangement as on date or detachment of
the child from the respondents who are
10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1183
looking after her as their own child since
she was barely three and a half months old,
would have an adverse effect on the mental
well being of the child and may have the
effect her physical health as well. It is, thus,
argued that the family court had given due
consideration to the circumstances of the
case and based on the well settled principle
of welfare of the minor child being
paramount
consideration,
having
duly
ascertained the wishes of the child, has
rightly rejected the application.

13. On the findings on issue No.1,
about the visitation right given to the
applicant/appellant the biological parents of
the child, it was argued by the learned
counsel for the respondents that the
arrangements made by the family court
while deciding issue No.2 of leaving the
child in custody of the appellants was
wholly uncalled for, in as much as, giving
visitation right is a different consideration
from that of giving custody of the minor
child for 15 days to the parents who have
never contributed in the upbringing of the
child so far.

14.

Having
considered
the
submissions of the learned counsel for the
parties and perused the record, we find that
this is a peculiar case of the parents (both)
being the applicants seeking custody of
their minor child from their close relatives
who have fostered the child for few years.
As is evident from the record, there is no
dispute about the fact that the minor girl
child was left in the custody of the
respondents when she was barely three and
a half months old. The arguments of the
appellants/biological parents are that they
have given the child in the custody of the
respondent being their close relatives i.e.
brother and sister-in-law of appellant No.1,
so that they may overcome depression
which they were facing at the particular
point of time. However, as per the
arrangement between the parties, the child
was to remain in the custody of the
respondents but the appellants were free to
meet her and to spend time with their child
whenever they want. From the turn of
events, it seems that the said arrangement
did not work for long as the respondents
had refused to allow the appellants (the
parents) to meet their child. There was lot
of resistance at the ends of the respondents
which is also evident from the fact that the
respondents are even not happy with the
arrangement made by the family court to
allow the parents to have the custody of
their child for 15 days in one year. The
respondents have resisted this arrangement
on the premise that the appellants would
take the child to Saudi Arabia forcibly and
illegally. This apprehension was raised
before the Court at the time when the
interim
application
of
the
applicant/appellant was considered and
allowed by this Court and the child was
sent with appellant No.1 for 15 days during
summer vacation as per order of the family
court.

15. It is evident from the record that
the child was denied access to her own
parents. She has been deprived of her right
to know her own parents and spend time
with them. Though, there cannot be a doubt
to the fact that the child was brought up by
the respondents as their own daughter and
she would call them as 'Abbu' and 'Ammi',
but restraining a child to meet her parents,
to our mind, is nothing but denial of her
birth/natural right to know her own self. As
the child is living with the respondents
since when she was three and a half months
old and barely got the chance to know her
parents, interviewing her or knowing her
wishes would have served no useful
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose as the child would want to remain
in the custody of the persons with whom
she is residing at present and who she
knows as her own parents. We may record
that for this reason and for other reasons for
the discussion made hereinafter, we did not
accept the prayer made by the learned
counsel for the respondent to summon the
child to ascertain her wishes.

16. Further, this situation takes us to
the observations made by the Apex Court in
the case of Thrity Hoshie Dolikuka Vs.
Hoshiam Shavaksha Dolikuka5 wherein
the Apex
Court
while
declining
to
interview the minor child had noted that it
was satisfied in the facts of that case that
the minor child was not fit to form an
intelligent preference which may be taken
into consideration in deciding her welfare.
In the facts of that case, the parents of the
child were litigating and the court while
dealing with the said case had noted that
any child who is placed in such an
unfortunate position can hardly have the
capacity to express an intelligent preference
which may require the court's consideration
to decide what should be the course to be
adopted for the child's welfare. It was
observed that mature thinking is indeed
necessary in such a situation to decide as to
what will enure to her benefit and welfare.
The relevant observations of the Apex
Court in the said decision as noted in
paragraph No.'81' of Nil Ratan Kundu
(supra)
are
required
to
be
noted
hereinunder:-

"81. Considering the facts of the
case, however, the Court refused to
undertake that exercise and stated;

"In the facts and circumstances of
this case we are however, not inclined to
interview the minor daughter, as we are
satisfied in the present case that the minor
is not fit to form an intelligent preference
which may be taken into consideration in
deciding her welfare. We have earlier set
out in extenso the various orders passed by
the various learned Judges of the Bombay
High Court after interviewing the minor
and the learned Judges have recorded their
impressions in their judgments and orders.
The impressions as recorded by the learned
Judges of the Bombay High Court, go to
indicate that the minor has expressed
different kinds of wishes at different times
under different conditions. It also appears
from the report of the Social Welfare Expert
that these interviews cast a gloom on the
sensitive mind of the tender girl and caused
a lot of strain and depression on her. Torn
between her love for both her parents and
the acrimonious dispute between them
resulting in the minor being dragged from
court to court, we can well appreciate that
the sensitive mind of the minor girl is
bound to be sadly affected. Though the girl
is quite bright and intelligent as recorded
by the learned Judges of the Bombay High
Court in their orders after their interviews
with the girl who is of a tender age and is
placed in a very delicate and embarrassing
situation
because
of
the
unfortunate
relationship and litigation between her
parents for both of whom she has great deal
of affection, she is not in a position to
express any intelligent preference which
will be conducive to her interest and
welfare.
Mature
thinking
is
indeed
necessary in such a situation to decide as
to what will enure to her benefit and
welfare. Any child who is placed in such an
unfortunate position, can hardly have the
capacity
to
express
an
intelligent
preference which may require the Court's
consideration to decide what should be the
course to be adopted for the child's welfare.
The letters addressed by the daughter to
10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1185
her mother from Panchgani and also a
letter addressed by her to her aunt (father's
sister) also go to show that the minor
cannot understand her own mind properly
and cannot form any firm desire. We feel
that sending for the minor and interviewing
her in the present case will not only not
serve any useful purpose but will have the
effect of creating further depression and
demoralisation in her mind".

 (emphasis supplied)"

17. The principles of law in relation to
the custody of a minor child, as to the
paramount consideration of the welfare and
interest of the child and the custody not
being the rights of the parents under a
statute is well settled. However, the said
position of law has been stated and
reiterated in those cases where the parents
have been litigating over the custody of the
child after separation. In some of the cases,
the grand parents have litigated with one of
the parent of the child after death of
another and the issue was examined from
the angle of the welfare of the child in the
facts and circumstances of the case.

18. In Rosy Jacob Vs. Jacob A.
Chakramakkal6, the Apex Court has held
that the object and purpose of the 1890' Act
is not merely physical custody of the minor
but due protection of the rights of minor's
(words) health, maintenance and education.
It was held that the power and duty of the
Court under the Act is the welfare of minor.
In considering the question of welfare of
minor, due regard has of-course to be given
to the right of the natural guardian but if the
custody of the father (in that case) cannot
promote the welfare of the children, he may
be refused such guardianship. It was
observed by the Apex Court in the facts of
that case, that merely because there is no
defect in the personal care and attachment
of the father for his child, which every
normal parent has, the father would not be
granted custody. Simply because the father
loves his children and is not shown to be
otherwise undesirable does not necessarily
lead to the conclusion that the welfare of
the children would be better promoted by
granting their custody to him. The Court
also observed that children are not mere
chattels nor are they toys for their parents.
Absolute right of parents over the destinies
and the lives of their children has, in the
modern changed social conditions must
yield to the considerations of their welfare
as human beings so that they may grow up
in a normal balanced manner to be useful
members of the society. It was observed
that the Court as a guardian of the minor in
case of a dispute between the mother and
the father, is expected to strike a just and
proper balance between the requirements of
welfare of the minor children and the rights
of their respective parents over them.

19. In Bimla Devi Vs. Subhas
Chandra Yadav 'Nirala'7 the Court has
held that paramount consideration should
be welfare of minor and normal rule (the
father is natural guardian and is, therefore,
entitled to the custody of the child) may not
be followed if he is alleged to have
committed murder of his wife. In such case,
appointment of grand-mother as guardian
of minor girl cannot be said to be contrary
to law. Construing the expression `welfare'
under
the
Hindu
Minority
and
Guardianship Act, 1956 liberally, it was
observed by the Court therein that:-

"It is well settled that the word
`welfare' used in this section must be taken
in its widest sense. The moral and ethical
welfare of the child must also weigh with
the Court as well as its physical well
being".
1186 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In Kamla Devi Vs. State of
Himachal Pradesh8 it was observed by
the Apex Court that the Court while
deciding child custody cases in its inherent
and general jurisdiction is not bound by the
mere legal right of the parent or guardian.
Though the provisions of the special
statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can
stand in the way of the Court exercising its
parens patriae jurisdiction arising in such
cases
giving
due
weight
to
the
circumstances such as a child's ordinary
comfort, contentment, intellectual, moral
and physical development, his health,
education and general maintenance and the
favourable surroundings. These cases have
to be decided ultimately on the Court's
view of the best interests of the child whose
welfare requires that he be in custody of
one parent or the other.

21. All the above noted decisions
have been taken note of by the Apex Court
in
Nil
Ratan
Kundu
(supra),
the
judgement relied upon by the learned
counsel for the respondent, to decide the
matter of custody of the child in a case
where father had moved an application
under the Guardian and Wards Act' 1890
seeking custody of his child. In that
particular case, the mother of the child had
died in unfortunate circumstances. The first
information report was lodged against the
father of the child that he had brutally
assaulted his wife who had died out of the
injuries inflicted by the husband. The
appellants before the Apex court were
grandparents of the child to whom the child
was handed over after death of his mother
while the father was in jail. The child was
barely five years old at that point of time.
After the father was enlarged on bail, he
moved application for custody of the child.
The family court as also High Court gave
the custody of the child noticing that the
present and future of the child would be
better secured in the custody of his father
and directed that the child be immediately
removed from the custody of his maternal
grandparents.

22. While upturning the said decision,
it was noted by the Apex Court that both
the trial as also the High Court had erred in
not applying correct principle and proper
test of welfare of minor as a paramount
consideration. It was also noted that the
trial court had fell in error in not
ascertaining wishes of the child as to with
whom he wanted to stay. It was noted by
the Apex Court that even the statutory
provisions in the form of Section 17(3) of
the Act' 1890 provides that proceeding in
appointing or declaring the guardian of a
minor the Court shall be guided by not only
the law to which the minor is subject, but
the welfare of the minor as appears in the
circumstances of the case and if the minor
is old enough to form an intelligent
preference, the court may consider that
preference. It was noted in the facts of that
case that the father was facing the charge of
attributing death of mother of the child and
a criminal case was pending in the Court.
This indeed was a relevant factor for a
court of law which must be addressed while
deciding the custody of a minor in favour
of the father.

23. In the facts and circumstances of
the case, the Apex court did not agree to the
observations of the High Court that the
child was tutored by the maternal parents to
make him hostile towards his father. The
Court did not accept the submission of the
counsels for the father therein that the trial
court was not bound to interview the child
and held that the observations in Thrity
10 All. Ms. Nasrin Begum & Anr. Vs. Prof. Mohd. Sajjad & Anr.
1187
Hoshie Dolikuka (supra) about the
perilous effect of interviewing the child at
the time of deciding the issue of custody,
was in the peculiar facts and circumstances
of the case, as the Court was satisfied that
calling a minor girl and interviewing her
several times had not served any useful
purpose and rather had the effect of
creating
further
depression
and
demoralization in her mind.

24. On overall consideration of the
case, it was held therein that the trial court
ought to have ascertained the wishes of the
minor child as to with whom he wanted to
stay.

25. The above decisions in Nil Ratan
Kundu (supra) was heavily relied upon by
the learned counsel for the respondent to
argue with vehemence that the wishes of
the minor child is one of the most relevant
considerations to decide the issue of the
custody of the child.

26. In light of the above, we may
record that the present case presents
peculiar facts and circumstances where
the child has been deprived of her right to
know as to who her biological parents
are. She has been denied access to her
parents by her maternal uncle and aunt
who brought up her as her own child
from the tender age of three and a half
months. They have not only fostered the
child but brought her as their own child.
The maternal uncle and aunt of the child
have no legal adoption and cannot be said
to be legal guardian of the child and can
only be said to be the foster parents. It is
evident that they looked after the child
very well but they are wrong in not
allowing the child to meet her parents.
They brought up the child as their own
and changed her perception about her
own parents. The child who is in the care
and custody of the respondents from the
tender age of three and a half months
would not even know as to who her
parents are.

27. In this admitted facts, in our
considered opinion, no useful purpose
would have been served in interviewing
the child as in all probabilities she would
reiterate what she had stated before the
family court. The observations in the
Apex Court in Nil Ratan Kundu (supra)
that the Court was required to ascertain
the wishes of the child as to with whom
he wanted to stay, therefore, would not be
of any help to the respondents to support
their assertion that the wishes of the child
has been duly ascertained by the family
court in order to decide the issue of
custody of the child and no interference
should be made by the Court without
further interviewing the child.

28. We may further record that we
have no doubt about the statement of the
minor girl noted by the family court that
she wants to stay with the respondents, her
maternal uncle and aunt, whom she calls
'Abbu' and 'Ammi'. The question, however,
is about the welfare of the child. In a case
where the welfare of the child is pitted
against the wishes of the child, the wishes
of the child has to yield in favour of the
paramount consideration of welfare of the
child who may wish otherwise. This is one
of the issues which was considered by the
Apex Court in Triti (supra) while refusing
to interview the child again.

29. We may further note sub-section
(3) of Section 17 of the Act' 1890 which
provides that the court may consider the
preference of the minor if the minor is old
enough to form an intelligent preference
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
which may taken into consideration in
deciding her welfare.

30. It was held by the Apex Court in
Nil Ratan Kundu (supra) that it is not the
`negative test' that the father is not `unfit' or
disqualified to have custody of his
son/daughter but the `positive test' that such
custody would be in the welfare of the
minor, which is material and it is on that
basis that the Court should exercise the
power to grant or refuse custody of minor
in favour of father, mother or any other
guardian.

31.