MOHAN KUMAR RAYANAversusKOMAL MOHAN RAYANA

                    (2010] 4 S.C.R. 411


                  MOHAN KUMAR RAYANA                             A
                              v.
                KOMAL MOHAN RAYANA
            (SLP(Civil) No. 9821-9822 of 2009)

                       APRIL 6, 2010
                                                                 B
     [ALTAMAS KABIR, G.S. S!NGHVI AND CYRIAC
                       JOSEPH, JJ.]

    Family Law:
                                                                 c
      Breakdown of marriage - Custody of girl child - Family
Court granting custody to mother and allowing the father
access to child on alternate weekend and child to share 50%
of school vacations with father - High Court declining to
interfere with the order - HELD: In such matters, the interest   0
of the minor is of paramount importance to the court which
stands in loco parentis to the. minor - Wishes of the minor
are to be given due weightage - Keeping in view the interest
of the minor, and on an assessment of her behavioural pattern
towards both the parents, there is no reason to interfere with   E
the order passed by the Family Court as affirmed by the High
Court - Hindu Minority and Guardiar.ship Act, 1956 - s. 6.

     In two separate petitions filed by the parents of the
girl child, each claiming her custody, the Family Court
granted custody of the child to the mother and directed          F
that the father would have access to the child on every
alternate weekend and the child would share 50% of the
school vacations with her father. In the appeals filed by
both the parents, the High Court declined to interfere with
the order of the Family Court as in its opinion sufficient       G
access provided to the father would meet the ends of
justice, and directed that the custody of the child should
continue with her mother.

                             411                                 H
    412      SUPREME COURT REPORTS               [2010] 4 S.C.R.


A         Dismissing the petitions, the Court

      HELD: 1. Having the interest of the minor in mind, this
  Court met her separately in order to make an assessment
  of her behavioural pattern towards both the parents.
  Much against the submissions which have been made
8
  during the course of hearing of the matter, the child
  appeared to have no inhibiti"ons in meeting her father with
  whom she appeared to have an excellent understanding.
  There was no evidence of the child being hostile to her
C father when they met each other in the Court. However,
  the child seems to prefer her mother's company as the
  bonding between them is greater than the bonding with
  her father. She is a happy child, the way she is now and
  having regard to her age and the fact that she is a girl
  child, the Court is of the view that she requires her
D mother's company more at this stage of her life. [para 13]
  (420-F-H; 421-A-B]

       Gui;rav Nagpal vs. Sumedha Nagpal 2008 (16 )
    SCR 396 = (2009) 1 SCC 42, referred to.
E
       1.2. There is no doubt that the petitioner is very fond
  of his daughter and is very concerned about her welfare
  and future, but in view of his business commitments it
  would not be right or even practicable to disturb the
F status quo prevailing with regard to child's custody. The
  conditions laid down by the High Court regarding
  visitation rights to the father are sufficient for the child to
  experience the love and affection both of her father and
  mother. There is no reason why the father who will have
  access to his daughter on holidays and weekends,
G cannot look after her welfare without having continuous
  custody of her person. In such matters the interest of the
  minor is of paramount importance to the court which
  stands in loco parentis to the minor. Of course, the
  wishes of the minor are to be given due weightage, and,
H in the instant case, the same has been done. Therefore,
     MOHAN KUMAR RAYANA v. KOMAL MOHAN                      413
                  RAYANA

there is no reason to interfere with the order passed by           A
the Family. Court, as affirmed by the High Court. [Para 13-
14) [421-B-E)

                      Case Law Reference:

     2008 (16) SCR 396         referred to           Para 7        B

    CIVIL APPELLATE JURISDICTION: SLP (C) Nos. 9821-
9822 of 2009.

     From the Judgment & Order dated 16.1.2009 of the High
Court of Judicature at Bombay in Family Court Appeal No. 29        C
of 2007 with Family Court Appeal No. 61 of 2007.

     Dr. A.M. Singhvi, Shyam Divan, Madhavi Diwan, Shelly
Saluja, .Ankur Chawla, Sheely Satija, Kevic Setalvaya, Pallavi
Langar (for Coac) for the Petitioner.                              D

   Meenakshi Lekhi, Abhijit Das, Gopal Jha, Ravi Kumar
Tomar for the Respondent.

     The Judgment of the Court was delivered by
                                                                   E
    ALTAMAS KABIR, J. 1. These petitions involve the final
stage of a custody battle on account of disruption and finally a
break down of the marriage ties between the petitioner and the
respondent.
                                                                   F
     2. The petitioner and the respondent got married in
Hyderabad on 11th August, 2000. A girl child, Anisha, was
born on 2nd March, 2002. Tlie nuclear family, along with the
mother of the petitioner-husband, resided together at
Chamboor, Mumbai till July, 2004 when, for whatever reason,
the respondent-wife left the matrimonial home to stay with her     G
parents at Sandra. On 24th November, 2005, with the help of
police personnel from Chamboor Police Station, she took away
Anisha from the custody of the petitioner's mother. The
petitioner recovered the custody of the daughter on 30th
                                                                   H
    414     SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A November, 2005 and this resulted in both the husband as well
  as the wife filing separate Custody Petitions before the Family
  Court in December, 2005. On 20th December, 2005, the Family
  Court granted weekend access/visitation right to the
  respondent-wife and by a subsequent order dated 15th
B September, 2006. the Family Court granted interim custody of
  the child to the petitioner-husband pending hearing and final
  disposal of the Custody Petition. The child remained in custody
  of the petitioner-father between November, 2005 and 2nd
  February, 2007, when the husband was directed to make over
c the custody of the child to the respondent-wife and since then
  she has been in the custody of the respondent-wife.

          3. Two appeals being Family Court Appeal No.29 of 2007
    and Family Court Appeal No.61 of 2007 were filed by the
    petitioner-husband and the respondent-wife respectively. The
D   Family Court Appeal No.29 of 2007, which was filed by the
    petitioner-husband, was directed against the judgment and
    order of the Family Court directing that custody of the minor
    child be made over to the respondent-wife. Despite the finding
    that during the period when Anisha was in the petitioner's
E   custody she had been well looked after and cared for and the
    petitioner had dutifully discharged his parental responsibility
    towards her. In the other appeal, the respondent-wife
    challenged the order of access made in favour of the petitioner-
    husband on every alternate weekend and to share 50% of the
F   School Vacations with the petitioner. In fact, at one stage this
    matter also once appeared before us and certain specific
    directions were given regarding the manner of access of the
    petitioner-husband to Anisha. While disposing of the pending
    appeals, the Division Bench of the High Court had occasion
G   to consider the legal and practical approach regarding custody
    of the minor in the light of the well-established doctrine that in
    these cases, the welfare and interest of the minor was the
    paramount consideration. Having dealt with the relevant
    provisions of the Hindu Minority and Guardianship Act, 1956,
H   since the parents as also the minor is a Hindu and while
     MOHAN KUMAR RAYANA v. KOMAL MOHAN                        415
          RAYANA [ALTAMAS KABIR, J.]
passing the final order the Division Bench was fully alive to the     A
fact that under Section 6 of the above Act the father is the
natural guardian of the person of the minor during his minority.
Despite the said legal position, the High Court, after carefully
considering the various other aspects conducive to the child's
welfare, and despite the interim order of custody in favour of        B
the petitioner-husband, chose not to interfere with the order of
the Family Court and directed that the custody of minor Anisha
should continue to be with her mother, the respondent herein,
and that sufficient access provided to the petitioner-father would
meet the ends of justice. The petitioner's prayer for Anisha's        c
custody, therefore, was rejected and being aggrieved thereby,
the petitioner-husband has filed the instant Special Leave
Petition.

       4. On behalf of the petitioner-husband it was urged that the
 judgment and order of the High Court suffered from various           D
 infirmities. It was submitted that having found that Anisha had
 been weil looked after during the period of petitioner's custody
 and the respondent-wife was trying to poison the child's mind
 against the petitioner and having also held that from the
 psychiatric evaluation made that the respondent-wife had a           E
 manipulative personality, apart from having a tendency towards
 psychosis which needed medical attention, the High Court
 erroneously chose note to interfere with the order of the Family
 Court directing custody of minor Anisha to be made over to the
respondent-wife. It was further urged that the High Court had         F
not properly appreciated the fact that when the respondent-wife
left the matrimonial home in July, 2004 to pursue film and
television career, she left Anisha behind when she was only 2
years and 4 months old, thereby virtually abandoning the child
when she needed her mother's care the most. For more than             G
2 years she did not have any contact with Anisha till in May,
2005 she forcibly removed Anisha from her paternal
grandmother's custody. It was submitted that the respondent-
wife was so bent upon pursuing a career in films and television
that she had no qualms about leaving a 2Y:z year old baby girl        H
    416      SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A   who needed her attention and motherly affection.

          5. Mr. Shyam Divan, learned Senior Advocate, who
    appeared with Dr. A.M. Singhvi, learned Senior Advocate, for
    the appellant, submitted that the final conclusion of the judgment
    and order of the High Court was against the grain of the findings
8
    therein regarding the petitioner's ability to look after the welfare
    of the minor child. Mr. Divan urged that both the parties were
    subjected to psychiatric evaluation on the directions of the High
    Court and in all the reports, and, in particular, in the report dated
C   20th September, 2007, submitted by Dr. Haridas, who was the
    Head of Department of Psychiatry, JJ Hospital, Mumbai, the
    respondent was diagnosed with a histrionic personality
    disorder of a nature that rendered her unfit for having custody
    of the child. It was pointed out that in the said report it was
    also mentioned that the respondent-wife was highly
D   manipulative and readily spoke lies even for trivia.I matters and
    showed trends of psychosis. On a comparative assessment
    of both the parties, the report concluded that it would not be in
    the interest of the child to keep her in the custody of respondent-
    mother and that, on the contrary, the petitioner-father was more
E   fit and capable to undertake the upbringing of the child. Mr.
    Divan submitted that even in the second report submitted on
    22nd November, 2008, it was stated that there was no evidence
    to revise the recommendations made in the earlier report. Mr.
    Divan submitted that despite the opinion of the medical experts
F   and the Court's own findings that the child was being
    manipulated, tutored and poisoned against the petitioner-
    husband by the respondent-wife, the High Court, as mentioned
    earlier, had erroneously chosen not to interfere with the order
    of the Family Court and in the ultimate analysis allowed the
G   custody of the minor child to remain with the respondent-wife.

         6. It was also submitted that in the face of the opinion of
    experts, the Family Court ought not to have relied upon the
    statements made by the Counsellors appointed by it or on the
    evidence of Shridhar Khochare, the Secretary of the Society
H
      MOHAN KUMAR RAYANA v. KOMAL MOHAN                      417
           RAYANA [ALTAMAS KABIR, J.]
  where the parents of the respondent resided, or the evidence A
  of Dr. Vivek Hebar who had also seen the respondent-wife at
  the school where Anisha was studying. It was submitted that
  as against the opinion of Dr. Anjali Chhabaria, wherein it was
  clearly stated that Anisha had confided in her that the
  respondent was mad and was not good, the Family Court ought B
  not to have given undue importance to the report of Mrs. A.R.
  Tulalwar who had interviewed Anisha on 13th January, 2006.
  It was also submitted that the attitude of the respondent-wife
 to block all interaction between the petitioner and the child in
 order to alienate the child completely from the petitioner and     c
 to deprive her of the petitioner's love and affection as a father,
 was also a factor which went against the respondent being
 given custody of the minor. Mr. Divan submitted that obsession
 of the respondent-wife for exclusive custody of the minor child
 was commented upon by the High Court and the very fact that D
 she has also filed an appeal only with regard to 50% access
 given to the petitioner-husband during the mi.nor's school
 vacations, also made her obsession for exclusive custody, to
 the detriment of the child's interest, very clear. It was submitted
 that a parent who poisons the child's mind against her father
 does not act in the child's welfare and should not, therefore, be E
 entrusted with the custody of the child. Mr. Divan submitted that
the minor child requires love and care of both the parents and
even if the relationship between the two are disrupted, the child
should not be deprived of a meaningful relationship with both
the parents. It was urged that while the wishes of the minor are F
to be considered seriously in deciding a matter of custody, the
same was not the sole criteria and it would have to be seen
as to who would be more suitable for the upbringing of the child,
who, till November, 2005, when the child was about 3Yi years'
old, did not even make an attempt to meet the child and was G
prepared to sacrifice the welfare of the child in order to pursue
a film and television career. Mr. Divan submitted that in view
of the conduct of the respondent and her denial of access to
the minor despite the orders of this Court, the respondent should
not be allowed to enjoy the fruits of her conduct.                   H
    418     SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A         7. In this regard, Mr. Divan referred to the decision of this
    Court in Gaurav Nagpa/ vs. Sumedha Nagpa/ [(2009) 1 SCC
    42], wherein this Court, inter alia, held that the paramount
    consideration of the Court in determining the question as to who
    should be given the custody of a minor child, is the "welfare of
B   the child" and not rights of the parents under the statute for the
    time being in force or what the parties say. The Court has to
    give due weightage to the child's ordinary contentment, health,
    education, intellectual development and favourable
    surroundings, but over and above physical comforts, the moral
c   and ethical values should also be noted. They are equal, if not
    more important than the other. When the Court is confronted
    with conflicting statements made by the parents, each time it
    has to justify the demands and has not only to look at the issue
    on a legalistic basis but human angles are also to be
D   considered as relevant for deciding the issues. In the facts of
    the said case V\{here the father had flouted the orders of the
    Court in keeping the custody of the minor child with him, this
    Court observed that he cannot be a beneficiary of his own
    wrongs and the said fact cannot be ignored while considering
E   the father's claim that the child had not been living with him since
    a long time. It was also observed that in child custody matters
    there should be a proper balance between the rights of the
     parents and the welfare of the child and in such circumstances,
    the choice of the minor is also an important consideration. Mr.
     Divan submitted that in the face of overwhelming evidence that
F   the respondent should not be entrusted with the custody of the·
     minor child, both the Family Court as well as the High Court
     quite inexplicably decided that the interest of the minor would
     be best served if custody was given to the respondent. It was
     submitted that if the welfare and future interest of the minor was
G   to be taken into consideration, the order of the Family Court
     as affirmed by the High Court, was liable to be set aside and
     the custody of the minor child should be made over to the
     petitioner.

H         8. The submissions made by Mr. Shyam Divan were firmly
     MOHAN KUMAR RAYANA v. KOMAL MOHAN                        419
          RAYANA [ALTAMAS KABIR, J.)
 opposed by Ms. Meenakshi Lekhi, learned Advocate, who               A
 appeared for the respondent-wife. Learned counsel submitted
 that the allegation that the respondent-wife had abandoned her
 minor child was incorrect, since in March, 2005, when she left
 her matrimonial home, she took Anisha with her in terms of an
 arrangement between the petitioner and herself. Ms. Lekhi           B
 submitted that this aspect of the matter had been examined at
 some length by the learned Judge, Family Court, Mumbai at
 Sandra in his judgment dated 2nd February, 2007 and the
allegation of the petitioner-husband that there was no
communication between the respondent and the minor daughter          c
stood contradicted by the evidence on record. In fact, the
learned Judge, Family Court had gone on to observe that the
contrary stand taken by the petitioner-husband and the positive
statement brought out in his cross-examination was sufficient
to dislodge his case that the respondent-wife had abandoned          D
the child.

      9. Ms. Lekhi also submitted that Mrs. A.R. Tulalwar,
 Marriage Counsellor appointed by the Principal Judge, Family
 Court, to ascertain the wishes of the minor child for the purpose
 of access by the respondent-wife, had in her final report           E
 indicated that the child shared a normal relationship with the
respondent-wife and considering her age she needed her
mother's company to strengthen the bond between them. It was
also observed that the child was familiar with the mother and
access would have to be worked out even outside the Court.           F
In her second interview report, Mrs. Tulalwar further observed
that Anisha share a very good relationship with her mother and
was willing to spend time with her mother, and, in fact, this was
her need at her age. Ms. Lekhi also referred to the interview
which the Court had had with the child on 15th November, 2006,       G
whereupon the Court concluded that as far as the wishes of the
child were concerned, she did not want to leave her father as
well as her mother, as she loved both of them very dearly and
wanted them to reunite.
                                                                     H
    420      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A         10. Ms. Lekhi submitted that the allegations regarding
    abandonment of the child by the respondent-wife were not,
    therefore, believed by the learned Principal Judge, Family
    Court, which ultimately felt that it would be in the best interest
    of the minor if her custody was made over to the respondent-
s   wife.

        11. As far as the allegations regarding denial of access
  by the respondent-wife to the petitioner to meet Anisha is
  concerned, it was urged that between 2007 till January, 2009,
C the petitioner made no attempt to exercise visitation rights given
  to him and did not make any attempt to meet the child. On the
  other hand, the petitioner who is very successful businessman
  and who has to go abroad very often, was not really interested
  in the welfare of the child since a suggestion had also been
  made by Dr. Haridas that if the petitioner-husband was not
D willing to accept custody of the child, she could always be sent
  to a boarding school.

        12. Ms. Lekhi submitted that the order passed by the
  learned Principal Judge, Family Court, Mumbai at Sandra, as
E affirmed by the High Court, did not warrant any interference and
  the Special Leave Petitions were liable to be dismissed.

       13. Having the interest of the minor in mind, we decided
  to meet her separately in order to make an assessment of her
F behavioural pattern towards both the petitioner as well as the
  respondent. Much against the submissions which have been
  made during the course of hearing of the matter, Anisha
  appeared to have no inhibitions in meeting the petitioner-father
  with whom she appeared to have an excellent understanding.
  There was no evidence of Anisha being hostile to her father
G when they met each other in our presence. From the various
  questions which we put to Anisha, who, in our view, is an
  extremely intelligent and precocious child, she wanted to enjoy
  the love and affection both of her father as well as her mother
  and even in our presence expressed the desire that what she
H wanted most was that they should come together again.
       MOHAN KUMAR RAYANA v. KOMAL MOHAN                    421
            RAYANA [ALTAMAS KABIR, J.]

 However, Anisha seems to prefer her mother's company as the A
 bonding between them is greater than the bonding with her
 father. Anisha is a happy child, the way she is now and having
 regard to her age and the fact that she is a girl child, we are of
 the view that she requires her mother's company more at this
 stage of her life. There is no doubt that the petitioner is very B
 fond of Anisha and is very concerned about her welfare and
future, but in view of his business commitments it would not be
 right or even practicable to disturb the status quo prevailing with
regard to Anisha's custody. The conditions laid down by~the
High Court regarding visitation rights to the petitioner are, in  c
our view, sufficient for Anisha to experience the love and
affection both of her father and mother. There is no reason why
the petitioner, who will have access to Anisha on holidays and
weekends, cannot look after her welfare without having
continuous custody of her person. As has repeate.dly been said, . 0
in these matters the interest of the minor is of paramount
importance to the Court which stands in loco parentis to the
minor. Of course, the wishes of the minor are to be given due
weightage, and, in the instant case; the same has been done.

     14. We, therefore, see no reason to interfere with the order. E
passed by the learned Principal Judge, Family Court, Mumbai
at Sandra, as affirmed by the Bombay High Ceiurt.

    15. The Special Leave Pet'itions are, accordingly,
dismissed and all interir:n orders are hereby dissolved.          F

R.P.                                     , · SLPs dismissed.



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