# THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA - **Citation:** [1983] 1 S.C.R. 49 - **Court:** Supreme Court of India - **Decided:** 1982-08-04 - **Bench:** R.S. Pathak, Amarendra Nath Sen - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thrity-hoshie-dolikuka-v-hoshiam-shavaksha-dolikuka-8580 - **Pages:** 46 ## Headnote ' Law relating to minor child-custody of the minOr daughter aged 11 .years. whether to be with the mother- or the father Duty of the Court-Whether it is obligatory on the part of the Court to inter11leW the minor for ascertaining the 'minor's wishes and iMplement the same-Parsi Afarriage and Divorce Act. 1936, Section 49; Guardians and Wards Act.1890: Sections 7 to 17. The appelJant and the respondent belong to the Parsi community and they were married in Bombay on the 27th December,' 1960 according to the rights and ceremonies of the Zoroastrian religion and custom. A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years. Irreconcilable differences and embittered relationship between the appellant and the respondent had led to the filing of Suit No. 14 of 1979. by th~ appellant mother, for judicial separation. A B c D. In the several applications made by the parents for the custody of the child, ;the learned judges of the High Court, before whom the said applications came E ' up for dispoSals interviewed the children separately and in the presenc.e of the parents and passed appropriate ·and equitable orders, keeping in the fore front the welfare of the minor children. The boy bas now become a major as per the ·Parsi Marriage and Divorce Act and the question of bis custody does not arise. The custody of the minor daughter was ultimately given to the father as per the order of the Division Bench of-the Bombay High Court dated October 16, 1981. Hence the appeal by the appellant ~other, after obtaining Special lea"ve of the F Court. AJJowing the appea'!, the Court. HELD : I. It is well settled t_hat any matter concerning a minor, has to be Considered and decided only from the point of view of the welfare and interest of the minor, the Court has a "Special responsibility and it is the duty of the G Court to consider"the welf~re of the minor and to protect thC minor's interest. In considering the question of custody of a minor, the Court has t6 be guided 'by the only consideration of the welfare of the minor. (79 B·D] Rosi JactJb v. Jacob A. Chakrammakkal [1973] 3 S.C.R. 918 followed. 7:1 There is no duty or obligation cast on the part of the CoUrt to interview the minor for ascertaining the wishes of the minor befor~ ~~~i 1~ing th~ ~~~t}~r;\ H • 50 SUPREME COURT REPORTS (!983J 1 s.c.n A of tbe child custody under section 49 of the Par~i M;arriage .and Divcirce Act. 1936. [81 F-GJ B c D F ·, G H 2:2 It is true that Section 17(3) of the Guardians and Wards Act, 1890 speaks of the consideration by the court of the preference of the child "if the minor is old·enough to form an intelligent preference". The instant case, is not one under the Guardian of Wards Act 1890. [83 B-C] 2:3 J:Iowever, there·cannot be any ·manner of doubt as the Court's power of entertaining any minor for ascertainii:ig the wishes of the minor, if the Court consider it so necessary for its own satisfaction in dealing with the question relating. to the custody of the minor. [83 DJ In the facts and circumstances of the case,' the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. The report of the Social Welfare Expert records that the interviews, tho minor girl faced before the several judges 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 frOrn court to court is bound to have effected the sensitive mind of the minor girl. Though the girl is quite bright and intelligent as recorded by the l~arned judges of the Bombay High Court iB their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarassing situation because of the unfortunate relationship and litigation between her parents for both of whOm she has ## Text _Characters 0–39,698 of 113,650. This is a partial read: ask again with offset=39698 for what follows._ , 49 THRITY HOSHIE DOLIKUKA v. HOSHIAM SHAVAKSHA DOLIKUKA August 4, 1982 ("'~ [R.S. PATHAK AND AMARENDRA NATH SEN, JJ.J ' Law relating to minor child-custody of the minOr daughter aged 11 .years. whether to be with the mother- or the father Duty of the Court-Whether it is obligatory on the part of the Court to inter11leW the minor for ascertaining the 'minor's wishes and iMplement the same-Parsi Afarriage and Divorce Act. 1936, Section 49; Guardians and Wards Act.1890: Sections 7 to 17. The appelJant and the respondent belong to the Parsi community and they were married in Bombay on the 27th December,' 1960 according to the rights and ceremonies of the Zoroastrian religion and custom. A son was born to them on the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is Gospi and aged 11 years. Irreconcilable differences and embittered relationship between the appellant and the respondent had led to the filing of Suit No. 14 of 1979. by th~ appellant mother, for judicial separation. A B c D. In the several applications made by the parents for the custody of the child, ;the learned judges of the High Court, before whom the said applications came E ' up for dispoSals interviewed the children separately and in the presenc.e of the parents and passed appropriate ·and equitable orders, keeping in the fore front the welfare of the minor children. The boy bas now become a major as per the ·Parsi Marriage and Divorce Act and the question of bis custody does not arise. The custody of the minor daughter was ultimately given to the father as per the order of the Division Bench of-the Bombay High Court dated October 16, 1981. Hence the appeal by the appellant ~other, after obtaining Special lea"ve of the F Court. AJJowing the appea'!, the Court. HELD : I. It is well settled t_hat any matter concerning a minor, has to be Considered and decided only from the point of view of the welfare and interest of the minor, the Court has a "Special responsibility and it is the duty of the G Court to consider"the welf~re of the minor and to protect thC minor's interest. In considering the question of custody of a minor, the Court has t6 be guided 'by the only consideration of the welfare of the minor. (79 B·D] Rosi JactJb v. Jacob A. Chakrammakkal [1973] 3 S.C.R. 918 followed. 7:1 There is no duty or obligation cast on the part of the CoUrt to interview the minor for ascertaining the wishes of the minor befor~ ~~~i 1~ing th~ ~~~t}~r;\ H • 50 SUPREME COURT REPORTS (!983J 1 s.c.n A of tbe child custody under section 49 of the Par~i M;arriage .and Divcirce Act. 1936. [81 F-GJ B c D F ·, G H 2:2 It is true that Section 17(3) of the Guardians and Wards Act, 1890 speaks of the consideration by the court of the preference of the child "if the minor is old·enough to form an intelligent preference". The instant case, is not one under the Guardian of Wards Act 1890. [83 B-C] 2:3 J:Iowever, there·cannot be any ·manner of doubt as the Court's power of entertaining any minor for ascertainii:ig the wishes of the minor, if the Court consider it so necessary for its own satisfaction in dealing with the question relating. to the custody of the minor. [83 DJ In the facts and circumstances of the case,' the minor is not fit to form an intelligent preference which may be taken into consideration in deciding her welfare. The report of the Social Welfare Expert records that the interviews, tho minor girl faced before the several judges 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 frOrn court to court is bound to have effected the sensitive mind of the minor girl. Though the girl is quite bright and intelligent as recorded by the l~arned judges of the Bombay High Court iB their orders after their interviews with the girl who is of a tender age and is placed in a very delicate and embarassing 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 ensure 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. Therefore~ sending for ihe minor and interviewing her in the present case, will not only not serve· any useful purpos1: but will have the effect of creating_ further depression and demoralisation in her mind. [83 E-ll, 84 A-DJ 3:1 60 a consideration of all the facts and circumstances of the c8.se and bearing in.mind the paramount consideration of the welfare of the child, the cbild'15 interest and welfare will be best served by removing her from the infiuebce of home life and by directing that she should coptinue to remain in the boarding school, which is admittedly a good institution. · .·3:2 Home influence plays a very important role in shaping the Hfe of every child. Influence of a happy home where the children are brought up under the affectionate guidance of their parents and other relations, all ~oncerned with the welfare of the children no doubt, enables the children to lead a n.ormal_ P.ealtby life and materially contributes to their welfare. In a happy home, the children are free from any kind of unhappy teqsion and psychological strain and they grow up in a healthy environment where their interests and welfare are properly looked after by their parents. In such a case, the court is normally not called upon to interfere and to consider the welfare of the children and the \V_elfare of tP.~ children is well taken care of. by their parents whose primary coh6eri is to \ • . ' .. tiiRITY HOSHIE v, HOSHlAM 51 see their interest and welfare. It is~ also no doubt true that the children who A stay at home with their parents and do not go to boarding school may also be very well disciplined in life aad may have a very healthy happy and normal growth, while staying at home. ~Therefore, in the interest of the childre~n whOm they have brought into exis~ence and who are innocent, every husband and wife ·should try to compose their .differences which are bound to be in any house. Even when any husband and ,-wife who. are not iri a position to reconcile their differ~nces and ~re compelled to part, they should part in a way as will cause B least possible mischief to the children. [84 E-H, 85 H, 86 El When the atmosphere in a house vitiated and rendered surcharged with tension as a result of bitter squabbles betWeen husband and wife, causes misery and unhappiness to a child 9 who has to live in constant psychological strain in such a broken ho me in view of the bitter relationship between her parents fo each of wfiom she has great affection, the hCalthy and normal growth of ther child is to be seriously affected. In the interest and. for the welfare of the child in such a case, the child is necessarily to. be removCd, from suCh unhealthy environ~ meat of.a broken home surcharged with tension. In such a case, the prope~. and best way or serving the interest and the welfare of the child wi11 be to remove the child from such atmosphere of acrimony and tension and to put the child in a place "'.here the embittered relationship between her parents does not easily and constantly affect her tender mind. [88 C-E] 3:3 The question of the custody of the child must necessarily be considered from the only view point of the welfare of the child. The person to whom the custody of the child has to ·be entrusted will necessarily be answerable to the school for payment of all charges and expenses of the child and also in relation to any matter concerning the child in-her school life. [89 D~E] In the instant cases, it is Clear that the father is not inclined to allow the child to remain in a Boarding institution, If the custody be left to h'im, the father it1 view of the disinclination to al1ow the child to remain in the Boarding institution, may be in a position,tO create difficulties for the child for remaining in the institution by non-payment of fees or otherwise. The "father is obsessed with the idea of obtairiing exclusive control of the ,dallghter and keeping the daughter with him in his house. [89 E-F] It is not .in dispute and it cannot b/~isputed that the mother has a great de'al of affection for her daughter in her heart and to serve the best interest of the -dat,Jghter the mother is. prepared to make any necessary sacrifice for the welfare of the daughter. The mother, at 'cOnsiderable expense, had put her in Kimmins Boarding School, Panc'hghani, which is recognisd to be a· very g0od c 'D E F institution. She has been paying for all the expenses of the daughter at the G school. She has steady income out of which she is in a position to meet. all the expenses of her dau'.ghter at th.e school. The mother, also does not suffer from ar:i.y obsessjon reg_arding posession of the girl and she ~ants her daughter to lead a healthy normal life essential for her proper growth and development~ The niother is very anxious that the child should continue to remain in the Boarding School. The ·girl now _aged about 1 t years, is reaching all age when she will need H the guidance of the mother. "!hercfore, the custody of the girl should be given to the mother. [89 F-H, 90 ~-Bl · A 8 c D E F G H 52 SUl>IU!ME COURT llilPOllTS [1983 I 1 s.c.ll. Appeal by special leave from the judgment and order dated the 16th October, 1981 of· the Bombay High Court in Appeal No. 102 of 1981. V. S. Desai, B. R. Agarwala and M.N. Shroff for the Appellant. . / MC. Bhandare, Mrs. S. Bhandare, Raj Guru Deshmukh and T. Sridharan for the Respondent. The Judgment of the Court was delivered by AMARBNDRA NATH SEN, J. Whether the father or the mother should have the custody of their minor daughter now aged 11 years, is the question which falls for consideration in this appeal. by special leave granted by this Court. - Irreconciliable differences between the father and the mother and embittered relationship between the two have resulted in a sad protracted litigation. Unfortunately, in the various proceedings in Court between the father and the mother, the child had become the central figure and the child had appeared in Court on occasions for being interviewed by the learned Judges of the Bombay High Court. The child, it appears, is. quite bright and rather sensitive. The unfortunate litigation between the father and the mother appears . to have badly affected the normal and healthy growth of the child. The situation appears to be all the n;iore unfortunate, as the father and the mother both love the child dearly and the child is fond of both her parents. It is, indeed, said that the parents who are ho.th genuinely fond of their dau!lhter and have her welfare in their hearts, · could not compose their differences and work out a solution which would be most conducive to the welfare of the child. The responsibility has, therefore, devolved on' the i Court. The task of the Court Js._indeed difficult and delicate. The Court in this case, is concerned with a human· problem affecting \he future of a little girl. We feel that in a case of this nature a decision of the Court however, may ·not succeed in solving the real problem and in achieving the desired goal. Anyway, as all attempts by Courts to bring about an agreed solution.of the problem to the satisfaction of all concerned, have failed the Court must proceed to discharge its duty, however painful ang 9elicate that task may be. · • • tl!RITY l!OSHIE v. HOsl!IAM (A.N. Sen, J.) We shall now proceed to state some of the broad facts relevant A for the purpose of the disposal of this case. The appellant who is the mother of the child and the Respondent who is the father of the child, both belong to the Parsi Community and they were married in Bombay on the 27th B December, 1960 according to the rights and ceremonies of the Zoroastrian religion and custo11. A son was 'born to them on the / 6th of May, 1965. The son who is called Shiavux is now more than 16 years old. A daughter was born to the app_ellant and the respondent on the 18th April, 1971. The daughter is named Gospi and she is now nearly 11 years of age. In this appeal we are conC cerned with the custody of this girl Gospi. The appellant who is the mother and whom we shall de-scribe in the judgment ·either as the appellant·or the mother, has been in the employment of Tatas for a long time and she now works as a confidential secretary to one of the Directors and gets a salary of Rs. 2500 per month. The respondent obtained training in architectural engineering and had D obtained a diploma. The respondent ·had also obtained a licence from the authorities to enaJ?le him to function as an architect. The respondent had worked with various concerns from time to time and had also worked at times of his own as an architect. The respondent at present owns a taxi which he plies himself. According to the respondent he makes 'a gross earning on average of something between Rs. 125 to Rs. 150 per day, by plying his taxi. After the marriage on 27.12.1960 the respondent set up their matrimonial home i11 Mount Villas at Bandra, the tenancy of which siood in th.~ · name of the appellant. As the appellant is aa- employee of Tatas, the tenancy was granted to her by Ratan Tata Trust which owns the premises. It appears that unfortunate differences arose between the appellant and the respondent and the appellant left the matrimonial home on 21.5.1978. It is indeed unfortunate that the parents could not reconcile their differences at least in the interest of their children and on 21.4.1979 the appellant filed a suit being suit No. 14 of 1979 for judicial separation. On 24.4.1979 the appellant in her suit No. 14/1979 made ,an application for getting the custody of both the children i.e. the son Shiavu' and daughter Gospi. By consent of the parties on 27.4.1979, an interim urder was passed on the said application and the said order is to following effect : "The children to spend the week-ends commencing from Saturday the 28th April 1979 with the Petltioa'er and E F G H S4 A D E F G H stJPl\llMll t:bbRT REPOllts f!9S3j I s.C.il. to stay over-night with the petitioner on Saturdays and Sundays. Defendant to send the children to the Petitioner at 10.00 a.m. on Saturdays. Petitioner to' return the children to the defendant by 9,00 a.m. on Mondays. Liberty to the Petitioner to take the children out of Bombay to Lonavla or Matheran for a fortnight commenc· ing from 5th May 1979 and ending 20th May, 1979. Petitioner undertakes throl!Jlh her learned counsel 'to bring the children back to Bombay on 20th May 1979 and to give written intimation thereof forthwith to the Prothonotary and Senior Master. The Petitioner shall return the children to the defendant on 21st May 1979 by 9 a.m. Liberty to the defendant to take the children out of Bombay to Matheran or Lonavla from 22nd May 1979 till 3rd June 1979 and to bring the children back to Bombay on or before 3rd June. Should however the defendant not desire to take the children out of Bombay from 22nd May till 3rd June 1979, the Petitioner shall be at liberty . to take the Children out of Bombay during this period and shall return the children to the defendant by 9.00 a.m. on 4th. Should however neither the petitioner nor the defendant be in a position to take the children out of Bombay from 22nd May till 3rd June, the children shall remain with the defendant and the petitioner shall have week·end access to the children in the manner stated in clause (I) above. In the event of the defendant being unable to take the children out of Bombay from ?2nd May, the defendant shall give written intimation of his liability to do so to the petitioner's advocate on or before 15th May, 1979 in which event the petitioner shall be at liberty to keep the children with her •either at Lonavla or M_atheran till 3rd June 1979 and shall return the children to the defendant by 9.00 a.m. on 4th June 1979. This arrangement shall be till 15th June 1979. Liberty to the Defendant to take the children to Undwada and Shirdi between 4th and 8th June, 1979". • ~ '. ... • • THRITY HOSHIE v. HOSHIAM (A. N. Sen, J.) SS The application came up for final disposal before· Lentin, J. · The learned Judge interviewed the children in his chambers before passing his order on the said application on 28.6.1979. As this happens to be the first order passed oy the Court after interviewing and speaking to the children, it will be appropriate to set out the order which reads : ' . "I have talked to the children in my chambers. The . . boy completed 14 years of age and the girl has completed 8 years of age. I have found both the children extremely intelligent and sensible. Both appear to be distressed at the present state of acrimony between their parents. Both have expressed their desire to spend their time with each of the parents since it is not possible for them, in view of the present state of affairs to spend their time with both~ · the parents at the same time.· After liaving talked to the children and after having ascertained their wishes, I pass the following order for access in the 'Interest of both the children. The father shall have access to the children from Monday to Friday and the· mother shall . have access to the children during the week-ends, viz. Saturday and Sunday. The children shall be sent by the father to 'the mother directly from School on Saturday· and. the children shall remain with. the mother till Monday morning when the mother will leave the children or arrange for them to be left at the school. The mother shall have access to ihe children on public holidays from 10.00 a.m .. of such holiday till the following morning when she will leave or arrange for the children to be left at the school. It is clarified that thoug!i Mond I • . ' I THRITY HOSHIB v. HOSHIAM (A.' N. Sen, 'l.) 57 I The present arrangement of the pa~ents · sharing the . A company of the children during the vacation to continne in the coming October and D~cember vacations on the basis of the children remaining with the father in' the first half of the vacation and with mother in the otlier half. ~. This arrangement of sharing the· company of the B children during the. vacation will also apply for ~oming years pending the hearing and final disposal of the suit. . I .It is clarified that the order, whereby the children· go to their mother every week. end, ·will .not ·be effective· during the vacatio.n perioq as the children for the firsi half of the vacation will be exclusively with the father and· the' other half exclusively with the mother. · Chamber Summons absolute !lccordingly with no order as to costs." I It may be'mentioned that the daughter Gospi, had been admitted to~ Carmel Convent High School in the·X.G. Class and she had been studying in that School. Shiavux was a student of St. Anne's High . School. It appears that on 15.6.1980, the Respondent without informing the appellant and ·without her knowledge or consent removed Gospi from Carmel Convent High School and put hef in · St. Anne's High School. On the 20th June, 1980 the appellant made' an application in her suit for an order for custody of her two children and also for an order . that. the child Gospi be forthwith • removed from St. Anne's High School and be ·put in Carmel Con- , vent High School. . The said application was disposed ·by Kania,' J, on the 9th of Juiy 1980 and the learned Judge who had also spoken to Gospi was pleased to pass the. following order : "This is ·a petition for ihe cusfody of the two minor children and for the decision of the question as to whether the minor daughter Gospi sh6uld be removed .from St. Aime's High School where she has just been got admittea.:- by her father. As far as the qu.estion -of fin'al custody is concerned, it appears, particularly' in. view ·of the orders passed earlier by Lentin J. and Agarwal, J. that that question can be more conveniemly decided when the suit is disposed·of. This posWon is accepted b¥ both the parties, ' . c D E G \ A B c D ' E • F G .H 58 SUPREME COURT REPORTS [lcJ83) 1 s.c.R As far as the· question of change of school is con· cerned, it is regrettable that the respondent husband has changed the minor's school from Apostolic Carmel Convent High School to St. Anne School without previousiy inforni-- ing the .petitioner as he should have done. However, after talking to the child, I find that she is anxious to continue in St. Anne's School at present. Moreover, she has already been admitted to that school. In view of this I see no reason why ·the respondent should be directed to remove - her from St. Anne's. School and to try to get her readmitted to Carmel Convent High Sc_hool. If the child is not very happy in thenew school i.e. St. Anne's ~chool, the : question of changing her school and getting her admitted in Carmel Convent High School can be consid~ed at the end of the academic year. No order as to costs." On 9.9.1980, the Respondent filed a contempt application against the appellant complaining of the violation of the order of the Court in the matter of handing over of the ·girl Gospi to him: The said application of the respondent was disposed of. by Lentin, J. on the 22.9.1980. The learned Judge talked· to the children together and also individually and it appears that the !_earned Judge had a fairly long conversation with the girl Gospi for about 40 minutes. The learned Judge ·thereafter passed an order on the said contempt application of the respondent to the following effect : _ · "I have talked to the children together and individually. From my conversation with the daughter (aged 9) which extended to well nigh 40 minutes. I do not think that she has either been 'brainwashed', 'tutored' or 'pressurised', 1 into not going to the father. She is undergoing a tremen- . dous mental and emotional upheaval which finds her bewildered and totally · unh"appy at the increasing acrimony between her paren1s. She desperately needs her mother . and cannot bear ,to be parted from her and it is not mere , childish pique, or 'brainwashing' or 'tutoring' that is behind it. I am aware that normally a parent is given access to his or her child. However, in this case, I fear that if this little girl who is mentally and emotionally disturbed, is compelled to 'go to her father against her wi•hes, the consequences on her well being and her mind in its present ~t~te are predictable and will be dis~strous, • ' .. • THRITY HOSHIE v. HOSHIAM (A. N. Sen; J.) Her conversation -with me did not reveal any intention on the part of the mother . to want to flout my order of 28th June, 1979 as urged on behalf of the father. If at all, it showed some resentment on the child's part against the mother for trying ·to ·induce he.r to go to her father against her will. The husband's contention that the wife should have applied for modification of that order, does not take into account (i) that she wa.s tryi"i!' to persu.!lde the girl to go to her father, (ii). that this at best is a technical breach, and (iii) that confining the wife to civil prison, or otherwise punishi~g her, Would in this case be DO 59 . ·solution io what js basically a human problem, more so • when looked at from the view of the child who is inteli'i!ent enough to speak up for herself and whose interest and well being must be paramount consideration. Taking all the facts and circumstances into consideration, I pass no or.der on the motion .with no order -\. as to costs. I suspen·d my earlier order dated 20th June, 1979 to the extent that it gives the husband access to the W.. from Mondays to Fridays and clarify that until the disposal of the suit which; I am told, is ripe for hearing, the mother shall have uninterrupted access to the girl and shall not be bound to send ih~ child to the· father against the wishes of the child. For the mental and emotional well being of his child, the husband should in good grace make this sacrifice. It is• further clarified, if clarification is at all necessary, that the _implication of this ··order is that the husband shall not, until the disposal of the suit, visit the girl at her school, for such visits sh'e dreads, resulting in spells of nausea , and' black-outs and which visits 'she finds upsetting ·and humiliating before her friends before whom she naturally wants· to maintain fhe facade that all is well between her parents:" Against the said order of Lentin, J. ·the. Respondent filed an appeal. ·. During the pendency of the appea.1, the suit filed ·by the appellant and the counter claim .filed in the ,suit by ·the respondent came up for final hearing. It may be noted that in the counter claim filed by the respondent in the said suit of the appellant, the respondent had made certain allegations against' the appellant. On 10.11.1980, . . the suit and the counter .claim were disposed of. By the decree pa~sed in the suit filed by the appellant, divorce was granted o~ IQ<} . . '•' . ' A 8 c D E F G A B c E I H 60 SUPREME COURT REPORTS (1983] I s.c.il. ground of desertion of the appellant and the allegation of cruelty made by the appellant against ·the husband, the respondent, was withdrawn by the appellant. Jhe respondent had ·also withdrawn all the allegations made against the appellant and the decree· for divorce was passed in· favour of the appellant, as already noted, only on the ground of desertion. A consent order was passed with regard to other reliefs and under the consent order, the appellant go\ bac( her flat in Mount Villas from which she .was earlier ousted. The appeal filed by the respondent ' . against the order of Lentin J. dated 22-9· l 980 was also, withdrawn, and it ;,,as agreed that the question of custody of the children would be decided by the Court on a petition for custody to be filed by either of the parties. On 3-12-1980, the respondent filed a petition .for 1:ustody of both the children. Since the son Shiavux. would complete 16 years of age in May, 1930, and was outside the jurisdiction of Parsi Matrimonial Court. the appellant could not resist !he respondent's prayer for custody of Shiavnx and the appellant contested the respondent's. prayer for custody of daughter Gospi. The said custody petition of -the respondent came to be heard by Dinshaw Mehta, J. and the learned Judge passed an order directing the custQdy of the 9hitdren to· be given to the father. It is desirable to set out the. following observations of the learned Judge while passing his order on the custody application. The learned Judge has observed : "I have interviewed both the minor children individually and also in the presence of each of the parents. I have also talked to the . petitioner and' the 'respondent in ' the presence of the children. I consider both the petitioner aswell as the respondent as persons capab]e1 of looking after the.welfare of.their children. The only hurdle in the way of the respondent was that she was not available to the minor .Gospi for most of the day after the child returned from .School-at· about 1.00 p.m. and till 7.00 p.m. The minor during this period was looked after by Mr. and Mrs. Kotwal. This, to my mind is an unfortunate situation.' However, benevolent, hospitable and kind the ne.ighbours be, I do not see why- the child should grow Up on the charity of neighbours, particularly when her own kith and kfo were available, especially her brother Shiavux. I am informed that Shiavux and Gospi have not met each other for the last six months. I do not know bow this situation has l;Je\'n al!ow\'~ to ~rise, but I can 9nly say that \t is mQ$t . .41\ ' • · 'i11k1'.fY. HOS~iE v. HOSHIAM (A. N. Sen, i.) ···. 61 . unfortunate. Both the brother 'and the sister appear to be· f~nd ·nf each other and have expressed their desire to live · together .. I would have willingly given the custody ofJhe . minor Gospi to the mQ.ther, but for the fact thaqhe is n.ot available to the minor· tor long hours ·of the day and again the child will be left io be looked after by neighbours or servants. In the petitioner's house-hold there are three sisters of the petitioner who can look· after the welfare of both Shiavux and Gospi in ;the absenc~ of the Petitioner,· As pointed out earlier; one of the sisters is a qualified teacher and can look after the education of the children . At this stage, I may .advert-to the conduct of Gospi 'during the fortyfive minutes that she ,was in my chamber. Almost throughout this period, Gospi kept crying or sobbing or whin.ing although t!>ere was no' provocation· to do so;-and this was so even in the presence ·of her mother, the Respondeni. The· child app~ared to be nervous and kept biting her nail~.· I had an occasion to· meet Gospi and Shiavux about a· year ago when a Chamb.er Summons taken out by the Respondent, w.as heard bY ·me. At that time during my talks with both the children, I found them to be intelligent, exhuberant and confident. They expressed a desire to live with both the parents. The situation has changed radically today. Gospi has.developed an aversion for the father and expressed her ·desire to live with ihe . . mother. On three .different occasions she. stated that she ' . . was not tutored and brain-washed .. It appears to ine that the child is under considerable m~niaJ pressure and at . present she is not a normal child. It is impo;tant to create an atmosphere where ·the child will live a normal and healthy life. It will only be under such conditions that the child's progress at School will improve. Between September, 1980 an·d today the child's education has been neglected for some reason and this is evident from the fact that the .child failed in October 1980 Exami.nation in three, subjects. Normally I would have given ·preference to the desire of the child an·d would have acceded ·to her request. In the -instant case, however, I do nqt think that it i.s in theinterest of Gospi to permit her· to remain· in .the custody of the Respondent. The child has been sadly neglected. If the child is to return to normalcy, it is very necessary that she should be returned to tlie custody of the father. A B c D • E G H A B c D E F G 62 .. SUPREME cOURT REPORTS . . t198~j 1 S.C.R. Such al) arrangement will permit both the brother and the sist~r to grow up together and it' will allow both of them tC\ take comfort and counsel from each· other. I consider tliis arrangement to. be in the interest of both the children Shiavux and Gospi. I, therefore, order that both the minors Shiavux and Gospi will remain in the custody of the ·Petitione~ till such time as they reach the age of majority i.e. 16 yeilrs. Boih the mlnors will remain with· the Petiiioner during the course ·of the week i.e. from M~ndays till Frjdays. The Petitioner will take the children on Saturday mornings at 9.00 a.m. to the house of the Respondent and leave them with her till Sunday 7.00 p.m. when the Respondent wilf' band over both the minors back in the custody of the Petitioner. During the School vacations, half the period of the vacation will be spent by the children with the Petitioner and half with. the Respondent by mutual arrangement. There will be no order as to costs of the ,/ .. pet1t10n. Mrs. Ponda states that this order be stayed as. her clients desire to proceed further. This order will be stayed till 9.3.1981". ' The appellant preferred an appeal on 6.3.1981 a.nd the appellant also applied for interim stay of the· order passed by Mehd, J. It appears that an ad-interim stay was granted by the Division Bea'ch. On the 20.3.1981 a Division Bench consisting of Madon and Khurdukar JJ. disposed of the said application in the following terms : . ' "Pending the hearing and final disposal of the appeal, the order dated February 19, '1981 appealed agaiust . stayed as far as.it relates to the minor Gospi alone'. Until the St: Annes High School in which the minor' Gospi is at present studying closes for the summer vacation, the Respondent to be entitled to take the child to his · residence on Thursdays from 9 a.m. till 8 p.m. H · The respondent, who is present in Court, gives an undertaking through his advocate to return the child Gospi to the appellant's residence each Thursday by 8 p.m. ,.., . • \ .> · THRiTY HOSHIB v. HoSHIAM (A. N. Sen, J.) . So far as' the school vacations are concerned, the appellant to keep the child Gospi with her for the first half of each vacation and the respondent to keep the child for the second' half of each vacation. The respondent t" take the child' to his residence by' 9 a.m. on-the first day of the second half of each vacation and to return the child ·by 8 p.m. on the last day of the second half of each vacation. The respondent who, as mentioned, earlier is present · in Court, through his Advocate gives· an undertaking to take the child Gospi to .the appellant's residence and leave her there by 8 p.m. on the last day of the second half of each vacation. We may record t~at we had seen the child Gospi in Chambers on March I 0, 198 l and had found her to be an · · extremely bright and intelligent child. We may further record that the cchild stated that she did not· have any ·aversion to spe!ld the day with her father, namely, the respondent, but was greatly apprehensive that if she did so; . she would not be allowed to return ·her mother, namely,'the appellan~. with whom she wanted to stay or that some ·application would be made to the Court on behalf of the respondent for ·the -purpose of not returning the child fo the appellant but to keep her with him. Notice of Motion made absolute in terms of prayer (c) also and the above directions with respect to the Respondent's access on Thursdays during the school terms and the order wJth respect to the sharing · of school vacaJ tfons also to apply if ihe child Gospi gets re-admission in ihe Apo•tolic Carmel Convent High .School lrom the ne.xt academic year foi the school tefms and vacations: If the child Gospi does n~t get -re-admission in the Apostolic Carmel Convent High School but continues in the Anne High School, the above directions with respect to the Respondent's access on Thursday during the Scho.ol terms and ·the sharing of vacations to ·other school terms and vacations: Costs of this Notice of Motion will be costs fa the appeal". ' 63 A B • c D E' F G H A 8 .. c D siJPRi!i.iii coiJil.t REPoR'J'S (!9S3j i s.C.R. As the respondent had not returned - Gospi , to the appellant, in terms of the order and the undertaking given by the respondent to the Court, the appellant on 3.4.1981 orally applied to the Division· Bench consisting of the same learned Judges viz. Madon and Khurdakar, JJ. complainfog of the breach of,tbe undertaking and on.the said application the Court passed, inter alia, the following . . order : ,· ... "There were some allegations and counter-allegations made by the parties against, each other,· into which we do noi desire to go. We, in the privacy of our chambers, talked to the child. We also talked separately to both the parties. We have also heard both counsel. An unfortunate position in that the child's final examina'tion in the Vth · standard in which she is .studying commences tomorrow and will finish on April 15, . 1981. Purely bearing this c.ircumstance in mind, we permit the chHd to continue to be with the Respondent until April 16, 1981. On tha't day we will give further directions· in the matter. We are passing this order purely in order not to make the ·child travel back .and forth between the residences during her I ·examination. ' ... E Mrs. Ponda on behalf of the appellant states .that the F G ·H ·child's textbooks, exercise books, the school uniform, etc. are at the appellant's place· of residence· and that the appellant will hand theni over to fhe Respondent. The Respondent will collect these articles from the appellant's · residence by 4 p.m. today. The matter will be on Board on April 16, 1981 for giving further directiqμs. The pariies and the child Gospi ) : ' will remain presendn'Court, and the Respondent will bring the child to Court on that day. ' We also restrain, pending. the g1v10g of further directions, the respondent, his servants, agents and .family members from taking the child Gospi outside-Bombay." \ Oh 16.4.1981, the matter came up again before the same division· Bench for final orders and the Court was pleased to pass tffe following order:· ( • .... I -. TIIRITY H~SHIE v. Hl>SHIAM (A. 'N. Sen, J.) 65 • I . "Today in our Chamber we have ~heard both learned .. i:dvocates as well as the 'Respondent who wanted to address'· us.' In course of arguments we pointed out to Mr.