Holding

Custody of the minor should not be granted to the father; the child's welfare and expressed wish to remain with his maternal grandparents are paramount, so the father's application is dismissed.

Summary

The case concerned an application by the father, Abhijit Kundu, for custody of his six‑year‑old son Antariksh, while the child was in the care of his maternal grandparents who had lodged an FIR against the father under Sections 498A and 304 IPC for the alleged murder of the mother. The trial court and the Calcutta High Court granted custody to the father without applying the welfare‑of‑the‑child principle or ascertaining the child's wishes. The Supreme Court held that the paramount consideration in custody matters is the child's welfare, which includes physical, moral and emotional well‑being, and that the pending criminal case and the child's clear preference to stay with his grandparents must be taken into account. Consequently, the Court dismissed the father's petition and ordered that the child remain with his maternal grandparents. The appeal was allowed.

Issues considered

The welfare of the child as the paramount consideration versus the father's right as natural guardian
Whether a pending criminal case under Section 498A IPC against the father affects his fitness for custody
Whether the court must ascertain the wishes of a minor under Section 17(3) of the Guardians and Wards Act, 1890
The applicability of the Hindu Minority and Guardianship Act, 1956 in determining custody
The correctness of the lower courts' orders granting custody to the father without applying the welfare principle

Legislation cited

Guardians and Wards Act, 1890s. 17, s. 4, s. 7
Hindu Marriage Act, 1955s. 26
Hindu Minority and Guardianship Act, 1956s. 13, s. 4, s. 6
Indian Penal Code, 1860s. 304, s. 498A

Subjects

child custodywelfare of the childGuardians and Wards ActHindu Minority and Guardianship Actnatural guardianSection 498A IPCparens patriaeminor's wishescustody dispute

Judgment

[2008] 11S.C.R.1111
. ii
NIL RATAN KU~DU & ANR. A
\/.
ABHIJIT KUNDU
(Civil Appeal No. 4960 of 2008)

. )'
AUGUST 8, 2008
[C.K. THAKKER AND D.K. JAIN, JJ.]
B

Guardians and Wards Act, 1890 - ss. 7 and 17 - Gus-
tody of minor child - Sought by father- Father facing criminal
trial u/s 498A and 304 /PC for causing death of the mother of c
the child - Child in custody of maternal grand-parents - Courts
below granting the custody to the father - On appeal, held:
Courts below granted custody to the father without applying
principle of welfare of the child as paramount consideration -
Custody of minor being humane problem, to be solved with
D
human touch and not solely by interpreting legal provisions -
The court in selecting a guardian exercises parens patriae
-=' 'I' jurisdiction - Thus bound to consider welfare and we/I-being
of child -On the facts, courts were bound to consider the pen-
dency of criminal case against the father - In such cases
wishes of minor also are required to be ascert~ined by the E
court - Hindu Minority and Guardianship Act, 1956 - s: 13.
Respondent filed an application under Guardians and
Wards Act, 1890 seeking custody of his minor son. The
minor child was in custody of the appellants (maternal F
> ~ grand parents of the child). Appellants had lodged an FIR
against the respondent u/s 498A and 304 IPC for causing
death of their daughter (mother of the child). Criminal case
was pending against the respondent-father. Appellants had
got the custody of the child at the age of five years when
G
he was found sick in the house of the respondent. Trial
court allowed the application holding that the respondent
). being the father and natural guardian, the present and fu-
ture of the child would be better secured in his custody.
1111 H
1112 SUPREME COURT REPORTS [2008] 11 S.C.R.

+
A High Court upheld the order of the trial court and also drew
inference that the child had been tutored against his fa-
ther. Hence the present appeal. The child, when asked by
this Court, refused to go to the respondent.

B
Allowing the appeal, the Court ·
HELD: 1.1 In the instant case, the Courts below were
not right or justified in granting custody of the minor to
>( ..
the respondent-father without applying relevant and well-
settled principle of welfare of the child as paramount con-
c sideration. [Para 83] [·1141-A]
1.2 In deciding a difficult and complex question as to
custody of a minor, a Court of law should keep in mind
t
relevant statutes and the rights flowing therefrom. But
such cases cannot be decided solely by interpreting le-
D gal provisions. It is a humane problem and is required to
be solved with human touch. A Court while dealing with
custody cases, is neither bound by statutes nor by strict ~ .,...
rules of evidence or procedure nor by precedents. In se- v
lecting proper guardian of a minor, the paramount con-
E sideration should be the welfare and well-being of the I
~
child. In selecting a guardian, the Court is exercising pa-
rens patriae jurisdiction and is expected, n;;w bound, to \.-
give due weight to a child's ordinary comfort, contentment,
health, education, intellectual development and favourable
F surroundings. But over and above physical comforts,
moral and ethical values cannot be ignored. They are
t· ~ ;
equally, or even more important, essential and indispens-
able considerations. If the minor is old enough to form an
intelligent preference or judgment, the Court must con-
sider such preference as well, though the final decision
G
should rest with the Court as to what is conducive to the
welfare of the minor. [Para 56] [1133 G-H] [1134 A-C]
1.3 In such cases, it is not the 'negative test' that the ....
father is not 'unfit' or disqualified to have custody of his
H son/daughter is relevant but the 'positive test' that such
NIL RATAN KUNDU & ANR. v. ABHIJIT KUN DU 1113

_. ~
custody would be in the welfare of the minor which is A
~
material and it is on that basis that the court should exer-
cise the power to grant or refuse custody of minor in favour
of father, mother or any other guardian. [Para 62] [1135-C-D]
·~

-
1.4 On the facts and in the circumstances of the case,
,. both the Courts were duty bound to consider the allega- B
tions against the respondent herein and pendency of ·
criminal case for an offence punishable under Section
498A IPC. One of the matters which is required to be con-
sidered by a Court of law is the 'character of the proposed
guardian. It is no answer to state that in case the father is c
convicted, it is open to maternal grand parents to make
an appropriate application for change of custody. Even
at this stage, the said fact ought to have been considered
and appropriate order ought to have been passed. [Para
72] [1137 C to F] D
·-----4
Rosy Jacob v. Jacob A. Chakramakkal 1973 (1) SCC
...-t 'f
840; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka
1982 (2) SCC 544; Surinder Kaur Sandhu (Smt.) v. Harbax
'. Singh Sandhu 1984 (3) SCC 698; Elizabeth Dinshaw (Mrs.)
v. Arvand M. Dinshaw 1987 (1) SCC 42; Chandrakala Menon E
(Mrs.) v. Vipin Menon (Capt) 1993 (2) SCC 6; Mausami Moitra
Ganguli v. Jayant Ganguli JT 2008 (6) SC 634; Kirtikumar
Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi,
1992 (3) sec 573 - relied on.
F
Saraswathibai 8hripad v. Shripad Vasanji, ILR 1941 Born
~ .. 455: AIR 1941 Born 103; Tarun Ranjan Majumdar and Anr.
v. Siddhartha Datta, AIR 1991 Cal 76; Bimla Devi v. Subhas
Chandra Yadav 'Nirala' AIR 1992 Pat 76; Goverdhan Lal and
' Ors. v. Gajendra Kumar AIR 2002 Raj 148; M.K. Hari
G
Govindan v. A.R. Rajaram, AIR 2003 Mad 315; Kam/a Devi v.
...... State of Himachal Pradesh AIR 1987 HP 34 - referred to.
1....
,._ McGrath, Re, 1893 (1) Ch 143 : 62 LJ Ch 208; Howarth
' v. Northcott, 152 Conn 460 : 208 A 2"d 540 : 17 ALR 3rd 758-
"
referred to. H
=i
~
1114 SUPREME COURT REPORTS [2008] 11 S.C.R.

A Halsbury's Laws of England, Fourth Edition, Vol. 24,
para 511; Habeas Corpus by Bailey Vol. I, page 581; Ameri-
can Jurisprudence, Second Edition, Vol. 39; para 31 and 148
pp. 34 and 280-81- referred to.
2.1 The trial Court ought to have ascertained the.
B wishes of the child. as to with whom he wanted to stay.
The child whose custody is in question was aged six years
when the trial Court dec_ided the matter. He was, however,
not called by the Court with a view to ascertain his wishes
as to with whom he wanted to stay. The Court was not
C right in giving the reason that none of the parties asked
for such examination by the Court. Apart from statutory
provision in the form of sub-section (3) of Section 17 of
Guardians and Wards Act, 1890, such examination also
helps the Court in performing onerous duty, in exercis-
D ing discretionary jurisdiction and in deciding delicate is-
sue of custody of a tender-aged child. Moreover, the final
decision rests with the Court, which is bound to consider
all questions and to make an appropriate order keeping
in view the welfare of the child. Normally, therefore, in cus-
E tody cases, wishes of the minor should be ascertained
by the Court before deciding as to whom custody should
be given. In view of the fact that when this Court ascer-
.tained the wishes of the child, he refused' to go to his fa-
ther, it would not be proper to give custody of the child to
F his father-respondent. [Paras 74, 83 and 84] [1137 H, 1138
A 1141 A-8,C,D]
+· -~
2.2 There is no material on record as to on what ba-
sis the inference that the child has been tutored to make
him hostile towards his father was drawn or opinion was
G formed by the High Court. [Para 70] [1136, H]
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka,
1982 (2) sec 544 - distinguished.
Anni Besant (Mrs.) v. G. Narayaniah and Anr., 41 IA 314
H : AIR 1914 PC 41 - referred to.
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1115
.....
Case Law Reference A
1893 (1) Ch 143 Referred to para 25
17 ALR 3rd 758 Referred to Para 28
AIR 1941 Born 103 Referred to Para 41
B
~- ~·
1973 (1) sec 840 Relied on Para 42
1982 (2) sec 544 Relied on Para 44
Distinguished Para 78
1984 (3) sec 698 Relied on Para 45 c
1987 (1) sec 42 Relied on Para 45
1993 (2) sec 6 Relied on Para 45
JT 2008 (6) SC 634 Relied on Para 46 D
1992 (3) sec 573 Relied on Para 48
~ ...,
AIR 1991 Cal 76 Referred to Para 50
AIR 1992 Pat 76 Referred to Para 51
E
AIR 2002 RAJ 148 Referred to Para 53
AIR 2003 Mad 315 Referred to Para 54
AIR 1987 HP 34 Referred to Para 55
AIR 1914 PC ·41 Referred to Para 75 F
~ 't CIVILAPPELLATE JURISDICTILN: Civil Appeal No. 4960
of 2008
From the final Judgment and Order dated 7.12.2007 of
the High Court of Calcutta in F.M.A.T. No. 3185 of 2006 G
-._
R.K. Gupta, S.K. Gupta, Arun Yadav and A.N. Bardiyar for
,/

. ,. the Appellants.
Jaideep Gupta, S.N. Mitra, Partha Sil, Kuna! Chatterjee
and B.K. Pal for the Respondent. H
1116 SUPREME COURT REPORTS [2008] 11 S.C.R.

A The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. Leave granted.
2. The present appeal is filed against the judgment and
order passed by the Additional District & Sessions Judge, Fast
B Track, 1st Court, Barasat on July 15, 2006 and confirmed by the
High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on Decem-
ber 7, 2007. By the impugned orders, both the Courts below
directed handing over custody of minor child Antariksh Kundu
to father-Abhijit Kundu, respondent herein.
C Factual matrix
3. To understand the controversy in the appeal, it is appro-
priate if we narrate relevant facts of the case:
4. The appellants herein, (i) Nil Ratan Kundu and (ii) Smt.
D Kabita Kundu are maternal grand father and grand mother re-
spectively of minor Antariksh, father and mother of deceased
Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu-
respondent herein. It is the case of the appellants that they had
a daughter named Mithu whom they gave in marriage to Abhijit
E Kundu on August 8, 1995. The marriage was performed ac-
cording to Hindu rites and ceremonies. Sufficient amount of
dowry by way of money, ornaments and other articles was given
to the respondent. According to the allegation of the appellants,
however, the respondent and his mother were not satisfied with
F the dowry and they started torturing Mithu for bringing more
money from the appellants. On November 18, 1999, a male child-
Antariksh was born from the said wedlock. The appellants
thought that after the birth of son, torture on Mithu would be
stopped. Unfortunately, however, it did not so happen. Mithu was
G totally neglected and the harassment continued. She became
seriously sick. Coming to know about the ill-health of Mithu, the
appellants brought her to their house and got admitted her in a
nursing home for medical treatment. On being cured, she re-
turned to her matrimonial home, but the demand of dowry per-
H sisted and physical and mental cruelty did not stop.
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1117
[C.K. THAKKER, J.]

5. In the night of April 9, 2004, as alleged by the appel- A
lants, Mithu was brutally assaulted by the respondent and his
mother and was brought to a hospital where she was declared
dead. Immediately on the next day i.e. on April 10, 2004, appel-
lant No.1 lodged First Information Report (FIR) against the re-
spondent and his mother at Baran agar Police Station which was B
,) )
registered as Case No. 90 for offences punishable under Sec-
tions 498A and 304, Indian Penal Code (IPC). The respondent
was arrested by the police in that case.

· 6. On April 18, 2004, custody of Antariksh was handed
over to the appellants. Antariksh was found in sick condition c
from the residence of the respondent. At that time, he was only
of five years. It was his maternal grand father-appellant No.1,
who maintained the child with utmost love and affection. He was
admitted to St. Xavier's Collegiate School, Kolkata which-is a
well-known and well-reputed school in the State of West Ben- D
gal.
" 1'
7. After due investigation of the case, on May 31, 2005,
police submitted a charge-sheet against the respondent and
his mother and the criminal case is pending. After the respon-
dent was enlarged on bail, he filed an application under the E
Guardians and Wards Act, 1890 (hereinafter referred to as '1890
Act') praying for custody of Antariksh. A reply was filed by the
appellants to the said application strongly objecting to the prayer
made by the respondent. It was expressly stated in the reply
that custody of child Antariksh was given to them when he was F
' .. -+
found in ailing condition in the house of the respondent. The
respondent and his mother had killed their daughter and a crimi-
nal case was pending and custody of Antariksh may not be given
to the father-respondent.
G
..._~ Trial Court's order
8. The trial Court, after considering the evidence on record,
.}-
allowed the application and held. that respondent was father and
natural guardian of Antariksh and the present and future of
Antariksh would be better secured in the custody of respon- H
1118 SUPREME COURT REPORTS [2008] 11 S.C.R.

A dent. Accordingly it passed an order that custody of Antariksh
be 'immediately' given to the father.
High Court's order
9. Being aggrieved by the said order, the appellants ap-
B preached the High Court. But the High Court also, by the order ~ -<,
impugned in the present appeal, dismissed the appeal holding
that the trial Court was right in ordering custody to be given to
the father and the said order did not suffer from infirmity. The
Division Bench of the High Court, therefore, directed the appel-
c lants to handover child Antariksh in the custody of his father with
visitation rights to the appellants. The said order is challenged
by the appellants-maternal grand parents of Antariksh in this
Court.
Earlier orders
D
10. On March 7, 2008, when the matter was placed for
. admission hearing, notice was issued by this Court and was 'f ..
made returnable on March 24, 2008. The Court also observed .,....
that let the child (Antariksh) remain present in the Court on that
day at 10.30 a.m. The learned counsel appearing for the appel-
E lants stated that the appellants would bear expenses of bring-
ing Antariksh to the Court. Accordingly, a direction was issued
that for that purpose, custody of Antariksh may be·given to the
appellants on March 22, 2008.

F 11. On the returnable date, i.e. on March 24, 2008, the
Court heard learned counsel for the parties. The Court also as- t .. >
certained the wishes of Antariksh. It was, however, observed in
the order that an appropriate order would be passed on March
31, 2008, the day on which the matter was ordered to be listed
for further hearing. It was stated that till then the custody of
G ,.,......
Antariksh would remain with maternal grand parents. It was also
observed that it would not ·be necessary to keep Antariksh
present in the Court on the adjourned date. On March 31, 2008, -'i, ,
the matter appeared on the board and the learned counsel for
'
the parties were heard. The learned counsel for the respondent
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1119
[C.K. THAKKER, J.]

prayed for time to file affidavit in reply. It was also stated that the A
matter was urgent and affidavit should be filed within a very short
period. The Court, therefore, observed that let such affidavit-in-
reply be filed on or before April 2, 2008 and the affidavit-in-
rejoinder be filed on or before April 4, 2008. The matter was
; adjourned to April 7, 2008. On April 7, 2008, again the Court B
r heard learned counsel for the parties and felt that the matter
should be heard finally on a non-miscellaneous day and accord-
ingly the Registry was directed to place the matter in the last
.,.. week of April, 2008. The matter was, therefore, placed on board
for.final hearing and it was heard on April 29-30, 2008. c
Appellants' submissions
12. The learned counsel for the appellants strenuously con-
tended that both the Courts were wholly wrong in granting cus-
tody of minor Antariksh to the respondent. It was stated that the
D
approach of the Courts below was technical and legalistic rather
l than pragmatic and realistic. It was stated that in such matters,
paramount consideration which is required to be borne in mind
by the Court is welfare of the child and nothing else. Precisely
that has not been done.
E
13. It was alleged that the respondent and his family mem-
bers were after dowry and they had tortured Mithu since she
· could not bring sufficient amount of dowry. She was physically
and mentally harassed. She became ill and was admitted to
hospital by the appellants. After she was cured, she returned to F
" ~ matrimonial home, but the harassment and cruelty persisted.
Even after the birth of Antariksh, the difficulties did not come to
an end and as Mithu was unable to bring more money, as de-
manded by the respondent and his family members, she was
killed and criminal proceedings were initiated against the re-
G
spondent and his mother which are pending.
. t- 14. It was further stated that the above incident had given
mental shock to minor Antariksh who was also found sick in the
house of the respondent when he was of five years of age. The
appellants broughtAntariksh with them and got him admitted in H
1120 SUPREME COURT REPORTS [2008] 11 S.C.R.

A a recognized and well reputed school and he is very well settled.
In the circumstances, the Courts ought not to have passed an
order directing the appellants to handover custody of Antariksh
to the respondent.
15. It was also contended that the trial Court which exer-
B cised the power under 1890 Act, did not ascertain wishes of ..
Antariksh by calling him, observing that none of the parties asked
for such examination and considering his.age, such action was
not taken. So far as the High Court is concerned, it observed
that the child had been 'tutored' to make him hostile towards his
C father. According to the counsel, there was nothing to show on
what basis the above statement had been made by the High
Court and the custody had been wrongly granted to the respon-
dent. The said order, therefore, deserves to be set aside.
16. It was also argued that under 1890 Act, in appointing
0
or declaring a guardian of a minor, the' Court should keep in
mind the welfare of the minor being paramount consideration
having regard to the age, sex and religion of the minor, the char-
acter and capacity of the proposed guardian and his nearness of
E kin to the minor. If the niipor is old enough to form an independent
opinion or preference, the Court may consider that aspect as
well. In the instant case, the trial Court decided the matter on July
15, 2006 when Antariksh was more than six years of age. But
neither his wishes were ascertained, nor his preference was even
enquired by calling him. It was also submitted that though 'char-
F acter' of the proposed guardian has to be taken into account, the
Courts below did not appreciate in its proper perspective the
fact that a criminal case was pending against. the respondent
which related to the death of mother of minor Antariksh involving
the respondent himself and his mother and by observing that if
G he would be convicted, appropriate action could be taken there-
after. The High Court also committed the same mistake. Both the
orders, therefore, are liable to be set aside.
Respondent's submissions
H 17. The learned counsel for the respondent-father, on the
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1121
~ [C.K. THAKKER, J.]

other hand, supported the order passed by the trial Court and A
confirmed by the High Court. It was urged that both the Courts
below considered the relevant provisions of law, the position of

. j<
the respondent as natural guardian being father of Antariksh
and the facts in their entirety and held that there was no earthly
reason to deprive him of custody of minor Antariksh. The Courts
felt that minor Antariksh also should not be deprived of natural
love and affection of his father in absence of mother.
B

18. According to the counsel, the Courts were conscious
of the fact that a criminal case was pending against the respon-
dent and, therefore, observed that if ultimately the respondent c
would be convicted and sentenced to jail, the appellants herein
(grand parents of the child) could move the Court for change of
custody. Such an order cannot be said to be illegal or contrary
to law and in the exercise of jurisdiction under Article 136 of the
Constitution, this Court may not interfere with it. D
._, ) 19. Before we address ourselves to the issue regarding
custody of Antariksh, let us consider the legal position.
English Law
20. In Halsbury's Laws of England, Fourth Edition, Vol. 24, E
para 511 at page 217 it has been stated;
"Where in any proceedings before any court the custody
. or upbringing of a minor is in question, then, in deciding
that question, the court must regard the minor's welfare F
~-
I
; as the first and paramount consideration, and may not
take into consideration whether from any other point of
view the father's claim in respect of that custody or
upbringing is superior to that of the mother, or the mother's
claim is superior to that of the father."
G
(emphasis supplied)
___,,,; -}
21. It has also been stated that if the minor is of any age to
exercise a choice, the court will take his wishes into consider-·
ation. (para 534; page 229).
H
1122 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 22. Sometimes, a writ of habeas corpus is sought for cus-
tody of a minor child. In such cases also, the paramount consid-
eration which is required to be kept in view by a writ-Court is
'welfare of the child'.
23. In Habeas Corpus, Vol. I, page 581, Bailey states;
B * ....
"The reputation of the father may be as stainless as crystal;
he may not be afflicted with the slightest mental, moral or
physical disqualifications from superintending the general
welfare of the infant; the mother may have been separated
c from him without the shadow of a pretence of justification;
and yet the interests of the child may imperatively demand
the denial of the father's right and its continuance with the
mother. The tender age and precarious state of its health
make the vigilance of the mother indispensable to its proper
care; for, not doubting that paternal anxiety would seek for
D
and obtain the best substitute which could be procured
yet every instinct of humanity unerringly proclaims that no
substitute can supply the place of her whose watchfulness
over the sleeping cradle, or waking moments of her
offspring, is prompted by deeper and holier feeling than
E the most liberal allowance of nurses' wages could possibly
stimulate."
24. It is further observed that an incidental aspect, which
·has a bearing on the question, may also be adverted to. In de-
F termining whether it will be for the best interest of a child to grant,
its custody to the father or mother, the Court may properly con-
sult the child, if it has sufficient judgment.
25. In McGrath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208,
Lindley, L.J. observed;
G
The dominant matter for the consideration of the Court
is the welfare of the child. But the welfare of the child is not
to be.measured by money only nor merely physical comfort.
The word 'welfare' must be taken in its widest sense. The
moral or r~ligious welfare of the child must be considered
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1123
1'-· [C.K. THAKKER, J.]

as well as its physical well-being. Nor can the tie of affection A
be disregarded.
(emphasis supplied)

American Law

-
(
,. 26. Law in the United States is also not different. In Ameri-
can Jurisprudence, Second Edition, Vol. 39; para 31; page 34,
it is stated;
B

"As a rule, in the selection of a guardian of a minor, the
best interest of the child is the paramount consideration, c
to which even the rights of parent$ must sometimes yield".
(emphasis supplied)
27. In para 148; pp.280-81; it is stated;
"Generally, where the writ of habeas corpus is prosecuted D
~ T for the purpose of determining the right to custody of a
child, the controversy does not involve the question of
personal freedom, because an infant is presumed to be
in the custody of someone until it attains its majority. The
Court, in passing on the writ in a child custody case, deals E
with a matter of an equitable nature, it is not bound by any
mere legal right of parent or guardian, but is to give his or
her claim to the custody of the child due weight as a claim
founded on human nature and generally equitable and

..,, ~-
just. Therefore, these cases are decided, not on the legal F
right of the petitioner to be relieved from unlawful
imprisonment or detention, as in the case of an adult, but
on the Court's view of the best interests of those whose
welfare requires that they be in custody of one person or
another; and hence, a court is not bound to deliver a child
G
into the custody of any claimant or of any person, but should,
in the exercise of a sound discretion, after careful
+ consideration of the facts, leave it in such custody as its
welfare at the time appears to require. In short, the child's
welfare is the supreme consideration, irrespective of the
H
1124 SUPREME COURT REPORTS [2008) 11 S.C.R.

A rights and wrongs of its contending parents, although the
natural rights of the parents are entitled to consideration.
An application by a parent, through the medium of a
habeas corpus proceeding, for custody of a child is
addressed to the discretion of the court, and custody may
B be withheld from the parent where it is made clearly to ~ "-.-
"'· appear that by reason of unfitness for the trust or of other
sufficient causes the permanent interests of the child would
be sacrificed by a change of custody. In determining
whether it will be for the best interest of a child to award
c its custody to the father or mother, the Court may properly
consult the child, if it has sufficient judgmenf'.
(emphasis supplied)
28. In Howarth v. Northcott, 152 Conn 460 : 208 A 2"d 540
D : 17 ALR 3rd 758; it was stated;
"In habeas corpus proceedings to determine child custody, r
"T
the jurisdiction exercised by the Court rests in such cases
on its inherent equitable powers and exerts the force of.
the State, as parens patriae, for the protection of its infant
E ward, and the very nature and scope of the inquiry and the
result sought to be accomplished call for the exercise of
the jurisdiction of a court of equity".
29. It was further observed;
F "The employment of the forms of habeas corpus in a child
custody case is not for the purpose of testing the legality -t '-
of a confinement or restraint as contemplated by the "
ancient common law writ, or by statute, but the primary
purpose is to furnish a means by which the court, in the
G exercise of its judicial discretion, may determine what is
best for the welfare of the child, and the decision is
reached by a consideration of the equities involved in
the welfare of the child, against which the legal rights of +
no one, including the parents, are allowed to militate".
H (emphasis supplied)
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1125
[C.K. THAKKER, J.]

30. It was also indicated that ordinarily, the basis for issu- A
ance of a writ of habeas corpus is an illegal detention; but in the
case of such a writ sued out for the detention of a child, the law
is concerned not so much with the illegality of the detention as
with the welfare of the child.
' .,, Indian Law B

31. The legal position in India follows the above doctrine.
There are various statutes which give legislative recognition to
these well-established principles. It would be appropriate if we
examine some of the statutes dealing witli the situation. Guard- c
ians and Wards Act, 1890 consolidates and amends the law
relating to guardians and wards. Section 4 of the Act defines
"minor" as a person who has not attained the age of majority.
"Guardian" means a person having the care of the person of a
minor or of his property, or of both his person and property.
0
"Ward" is defined as a minor for whose person or property or
both, there is a guardian. Chapter II (Sections 5 to 19) relates to
appointment and declaration of guardians. Section 7 deals with
'power of the Court to make order as to guardianshio' and reads
asunde~
. ' •
E
7. Power of the Court to make order as to guardianship.-
(1) Where the Court is satisfied that it is for the welfare of
a minor that an order should be made-
(a) appointing a guardian of his person or property, or
both, or F

(b) declaring a person to be such a guardian,
the Court may make an order accordingly.
(2) An order under this section shall imply the removal of G
any guardian who has not been appointed by will or other
instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other
instrument or appointed or declared by the Court, an order
under this section appointing or declaring another person H
1126 SUPREME COURT REPORTS [2008) 11 S.C.R.

A to be guardian in his. stead shall not be made until the
powers of the guardian appointed or declared as
.
aforesaid have ceased under the provisions
. of this Act.
32. Section 8 of the Act enumerates persons entitled to
apply for an order as to guardianship. Section 9 empowers the
B Court having jurisdiction to entertain an application for guard- ."'( '

ianship. Sections 10 to 16 deal with procedure and powers of
Court. Section 17 is another material provision and may be re;
produced;

c 17. Matters to be considered by the Court in appointing
guardian.-(1) In appointing or declaring the guardian of a
minor, the Court shall, subject to the provisions of this r
section, be guided by what, consistently with the law to
which the minor is subj~ct, appears in the circumstances
to be for the welfare of the minor.
D
(2) In considering what will be for the welfare of the minor,
.,.. ":"
the Court shall have regard to the age, sex and religion of
the minor, the character and capacity of the proposed
guardian and his nearness of kin to the minor, the wishes,
E if any, of a deceased parent, and any existing or previous
relations of the proposed guardian with the minor or his
property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
F ''-1
***** + .,,-'"'
(5) The Court shall not appoint or declare any person to
be a guardian against his will.
(emphasis supplied)
G
33. Section 19 prohibits the Court from appointing guard-
ians in certain cases.
\.
34. Chapter Ill (Sections 20 to 42) prescribes duties, rights .'
and liabilities of guardians.
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1127
[C.K. THAKKER, J.]

35. Hindu Minority and Guardianship Act, 1956 (hereinaf- A
ter referred to as "1956 Act") is another equally important stat-
ute relating to minority and guardianship among Hindus. Sec-
tion 4 defines "minor" as a person who has not completed the
age of eighteen years. "Guardian" means a person having the
care of the person of a minor or of his property or of both his B
persons and property, and inter alia includes a natural guard-
ian. Section 2 of the Act declares that the provisions of the Act
shall be in addition to, and not in derogation of 1890 Act.
36. Section 6 enacts as to who can be said to be a natural
guardian. It reads thus; C
6. Natural guardians of a Hindu Minor.-The natural
guardians of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
0
property), are-
i (a) in the case of a boy or an unmarried girl-the father,
and after him, the mother; provided that the custody
of a minor who has not completed the age of five
years shall ordinarily be with the mother; E
(b) in the case of an illegitimate boy or an illegitimate
-· (c)
unmarried girl-the mother, and after her, the father.
in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the F
natural guardian of a minor under the provisions of this
section~

(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the G
world becoming a hermit (vanaprastha) or an
ascetic (yati or sanyasi).
Explanation.-ln this section, the expressions "father'' and
"mother" do not include a step-father and a step-mother. H
1128 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 37. Section 8 enumerates powers of natural guardian.
Section 13 is extremely important provision and deals with wel-
fare of a minor. The same may be quoted in extenso;
13. Welfare of minor to be paramount consideration.
'•

B (1) In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of
the minor shall be the paramount consideration.
(2) No, person shall be entitled to the guardianship by
virtu~ of the provisions of this Act or of any law relating
c to guardianship in marriage among Hindus, if the
court is of opinion that his or. her guardianship will
not be for the welfare of the minor.
(emphasis supplied)
D 38. Section 26 of the Hindu Marriage Act, 1955 provides
for custody of children and declares that in any proceeding un-
der the said Act, the Court could make, from time to time, such
interim orders as it might deem just and proper with respect to
custody, m'aintenance and education of minor children, consis-
E tently with their wishes, wherever possible.
39. The principles in relation to the custody of a minor child
are well settled. In determining the question as to who should
be given custody of a minor child, the paramount consideration
is the 'welfare of the child' and not rights of the parents under a
F statute for the time being in force.
' -+-
Case Jaw
40. The aforesaid statutory provisions came up for consid-
eration before Indian Courts in several cases. Let us deal with
G few decisions wherein the courts have applied the principles re-
lating to grant of custody of minor children by taking into account
their interest and well-being as paramount consideration.
41. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941
H Born 455 : Al R 1941 Born 103; the High Court of Bombay stated;
NIL RATAN KUN DU & ANR. v. ABHIJIT KUNDU 1129
~
[C.K. THAKKER, J.]

"It is not the welfare of the father, nor the welfare of the A
mother that is the paramount consideration for the Court.
It is the welfare of the minor and the minor alone which
is the paramount consideration."
(emphasis supplied)
I.
I 'I B
42. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1
SCC 840, this Court held that object and purpose of 1890 Act
is not merely physical custody of the minor but due protection of
the rights of ward's health, maintenance and education. The
power and duty of the Court under the Act is the welfare of mi- c
nor. In considering the question of welfare of minor, due regard
has of course to be given to the right of the father as natural
guardian. but if the custody of the father cannot promote the
welfare of the children, he may be refused such guardianship.
43. The Court further observed that merely because there D
,.. is no defect in his personal care and his attachment for his chil-
1
dren-which every normal parent has, he 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 E
promoted by granting their custody to him. The Court also ob-
served 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 modem changed social
conditions must yield to the considerations of their welfare as F
'
/'
... _ human beings so that they may grow up in a normal balanced
manner to be useful members of the society and the guardian
court in case of a dispute between the mother and the father, is
expected to strike a just and proper balance between the re-
quirements of welfare of the minor children and the rights of
G
~ their respective parents over them.

~
44. Again, in Thrity Hoshie Dolikuka v. Hoshiam ·
_J
=t
Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated
that only consideration of the Court in deciding the question of
custody of minor should be the welfare and interest of the mi- H
1130 SUPREME COURT REPORTS [2008] 11 S.C.R.

A nor. And it is the special duty and responsibility of the Court.
Mature thinking is indeed necessary in such situation to decide
·what will enure to the benefit and welfare of the child.
45. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh
Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of
8 the Hindu Minority and Guardianship Act, 1956 constitutes fa-
ther as a natural guardian of a minor son. But that provision
cannot supersede the paramount consideration as to what is
conducive to the welfare of the minor. [See also Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42;
C Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2
sec 6].
46. Recently, in Mausami Moitra Ganguli v. Jayant
Ganguli, JT (2008) 6 SC 634, we have held that the first and
the paramount consideration is the welfare of the child and not
0
the right of the parent.
47. We observed;
"The principles of law in relation to the custody of a ·minor
child are well settled. It is trite that while determining the
E
question as to which parent the care and control of a child
should be committed, the first and the paramount
consideration is the welfare and interest of the child and
not the rights of the parents under a statute. Indubitably the
provisions of law pertaining to the custody of child
F contained in either the Guardians and Wards Act, 1890
(Section 17) or the Hindu Minority and Guardianship Act,
1956 (Section 13) also hold out the welfare of the child
are predominant consideration. In fact, no statute on the
subject, can ignore, eschew or obliterate the vital factor of
G the welfare of the minor. The question of welfare of the
minor child has again to be considered in the background
of the relevant facts and circumstances. Each case has to
be decided on its own facts and other decided cases can
hardly serve as binding precedents insofar as the factual
H aspects of th~ case are concerned. It is, no doubt, true
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1131
• [C.K. THAKKER, J.]

that father is presumed by the statutes to be better suited A
to look after the welfare of the child, being normally the
working member and head of the family, yet in each case
the Court has to see primarily to the welfare of the child in
determining the question of his or her custody. Better
...,, )'
financial resources of either of the parents or their love for B
the child may be one of the relevant considerations but
cannot be the sole determining factor for the custody of
the child. It is here that a heavy duty is cast on the Court
to exercise its judicial discretion judiciously in the
background of al the relevant facts and circumstances, c
bearing in mind the welfare of the child as the paramount
consideration."
\ 48. In Kirtikumar Maheshanker Joshi v. Pradip Kumar
~ Karunashanker Joshi, (1992) 3 SCC 573, custody of two mi-
nor children was sought by father as also by maternal uncle. D
. ~ Mother died unnatural death and the father was facing charge
under Section 498-A, Indian Penal Code. Children were stay-
ing with maternal uncle. Before this Court, both the children ex-
pressed their desire to stay with maternal uncle and not with the
father. E
49. Considering the facts and circumstances and bearing
in mind the case pending against the father and rejecting his

.. ...
prayer for custody and granting custody to the maternal uncle,
the Court stated;

"After talking to the children, and assessing their state of
mind, we are of the view that it would not be in the interest
and welfare of the children to hand over their custody fo their
F

father Pradipkumar. We are conscious that the father, being
a natural guardian, has a preferential right to the custody of
,,
I
G
his minor children but keeping in view the facts and
circumstances of this case and the wishes of the children,
1
who according to us are intelligent enough to understand
their well-being, we are not inclined to hand over the custody
of Vishal and Rikta to their father at this stage".
H
1132 SUPREME COURT REPORTS [2008] 11 S.C.R.
\

A 50. The counsel also invited our attention to decisions of
various High Courts. In Tarun Ranjan Majumdar & Anr. v.
Siddhartha Datta, AIR 1991 Cal 76, the High Court considered
Sections 7, 12 and 25 of 1890 Act. It held that when the Court is
of the opinion that some order is required to be passed with
B regard to custody of a ward, it can be passed considering the :>(

welfare of the ward. It was further observed that even if a child is """
in the custody of one who has no legal right thereto and its wel- ~
. '
fare is reasonably looked after in a manner in which it should,
the legal guardian cannot claim an order of return or recovery of
c custody merely on the strength of his legal right or financial
soundness.

51. In Bimla Devi v. Subhas Chandra Yadav 'Nirala', AIR
1992 Pat 76, the Court held that paramount consideration
should be welfare of minor and normal rule (the father is natural •·,
D guardian and is, therefore, entitled to the custody of the child)
may not be followed if he is alleged to have committed murder i'
,..,
of his wife. In such case, appointment of grand-mother as guard-
ian of minor girl cannot be said to be contrary to law.
52. Construing the expression 'welfare' in Section 13 of
E 1956 Act liberally, the Court observed;
"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
F as its physical well being".
t
(emphasis supplied)
53. In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002
Raj 148, the High Court observed that it is true that father is a
natural guardian of a minor child and therefore has a preferen-
G
tial right to claim custody of his son, but in the matters concern-
ing the custody of minor child, the paramount consideration is
the welfare of the minor and not the legal right of a particular
,. •· '
~

party. Section 6 of 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare of the mi-
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1133
[C.K. THAKKER, J.]
.J.

nor child. It was also observed that keeping in mind the welfare A
of the child as the sole consideration, it would be proper to find
out wishes of the child as to with whom he or she wants to live.
54. Again, in MK Hari Govindan v. A.R. Rajaram, AIR
2003 Mad 315, the Court held that custody cases cannot be
decided on documents, oral evidence or precedents without B
..... ,,.
reference to 'human touch'. The human touch is the primary one
for the welfare of the minor since the other materials may be
created either by the parties themselves or on the advice of
counsel to suit their convenience.
55. In Kam/a Devi v. State of Himachal Pradesh, AIR 1987
c
HP 34, the Court observed;
" "(T)he 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 D
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
E
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
F
. that he be in custody of one parent or the other" .
Principles governing custody of minor children ·
56. In our judgment, the law relating to custody of a child is
fairly well-settled and it is this. In deciding a difficult and com-
plex question as to custody of minor, a Court of law should keep G
in mind relevant statutes and the rights flowing therefrom. But
.. such cases cannot be decided solely by interpreting legal pro-
\ -+ visions. It is a humane problem and is required to be solved
with human touch. A Court while dealing with custody cases, is
neither bound by statutes nor by strict rules of evidence or pro- H
1134 SUPREME COURT REPORTS [2008] 11 S.C.R.
:...
,..
A cedure nor by precedents. In selecting proper guardian of a mi-
nor, the paramount consideration should be the welfare and well-
being of the child. In selecting a guardian, the Court is exercis-
ing parens patriae jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary comfort, contentment, health,
8 education, intellectual development and favourable surround-
;"( Ne
ings. But over and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we may say, even
more important, essential and indispensable considerations. If
the minor is old enough to form an intelligent preference or judg-
ment, the Court must consider such preference as well, though
c the final decision should rest with the Court as to what is condu~
cive to the welfare of the minor.
Orders of Courts below not in consonance with law
,....·~

57. Having given anxious and thoughtful consideration to
D the facts of the case and applying well settled principles referred '
to above, we are constrained to observe that the orders passed ~
by the Courts below are short of the fundamental principles on
more than one ground.

E 58. The approach of both the Courts is not in accordance
with law. and consistent with the view taken by this Court in sev-
eral cases. For instance, both the Courts noted that the appel-
lants (maternal grand parents) are giving 'all love and affection'
to Antariksh but that does not mean that Antariksh will not get
similar love and affection from his father. It was also observed
F that appellants no doubt got Antariksh admitted to a well re-
puted school (St. Xavier's Collegiate School, Kolkata). But it
t ....
could not be said that the father will not take personal care of
his son. Both the Courts also emphasized that the father has
right to get custody of·Antariksh and he has not invoked any
G disqualification provided by 1956 Act.
59. We are unable to appreciate the approach of the
Courts below. This Court in catena of decisions has held that ~
\
the controlling consideration governing the custody of children
is the welfare of children and not the right of their parents.
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1135
.. [C.K. THAKKER, J.]

60. In Rosy Jacob, this Court stated; A
"The contention that if the husband (father) is not unfit to
be the guardian of his minor children, then, the question of
their welfare does not at all arise is to state the proposition
a bit too broadly may at times be somewhat misleading".
"!'· B
~·
61. It was also observed that the father's fitness has to be
considered, determined and weighed predominantly in terms
of the welfare of his minor children in the context of all the rel-
evant circumstances. The father's fitness cannot override con-
siderations of the welfare of the minor children. c
62. In our opinion, in such cases, it is not the 'negative
test' that the father is not 'unfit' or disqualified to have custody of
his son/daughter is relevant but the 'positive test' that such cus-
tody 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 D
or refuse custody of minor in favour of father, mother or any other
~
guardian.
63. Though this Court in Rosy Jacob held that children are
not mere chattels nor toys, the trial Court directed handing over
custody of Antariksh 'immediately' by removing him from the E
custody of his maternal grand-parents. Similarly, the High Court,
which had stayed the order of the trial Court during the pen-
dency of appeal ordered handing over Antariksh to his father
within twenty four hours positively We may only state that a
_,. child is not 'property' or 'commodity'. To repeat, issues relating F
/
to custody of minors and tender-aged children have to be
handled with love, affection, sentiments and by applying human
touch to the problem.
64. At another place, the trial Court noted that a criminal
G
case was pending against the father but the pendency of the
case did not ipso facto disqualify him to act as the guardian of
Antariksh.

65. The Court stated; "If ultimately the petitioner (father) is
convicted and sentenced in that case, the OPs (maternal grand- H
1136 SUPREME COURT REPORTS [2008] 11 S.C.R.
~

A parents of Antariksh) will have the scope to inform the fact to the
Court and to pray for change of the Court's decision".
66. The Court made a 'comparative study' and observed
that it had 'no hesitation' in holding that the present and future of
Antariksh would be better secured in the custody of his father.
B ."(
,'
67. It then stated;
"Antariksh should be, therefore, immediately removed ~
from the custody of OPs (Maternal grand-parents) to the
custody of the petitioner (father)".
c
(emphasis supplied)
68. The appellants herein challenged the decision of the
trial Court by approaching the High Court. With respect, the High
Court also committed the same error by not applying correct
D principle and proper test of welfare of minor (Antariksh) as the
paramount consideration. It, no doubt, referred to the principle, ~
but held that the trial Court was right in handing over custody of
Antariksh to the father.

69. The High Court then proceeded to state;
E
"We have gone through the evidence adduced by both sides
and also heard the child in order to decide the question of
the welfare·of the said child. During our conversation with
the child we have observed with great anxiety that the
F child has been tutored to make him hostile towards his
~
father. In this connection it is worth mentioning here that the
learned Court below also held that the O.P's wanted to
wipe out the existence and identity of father from the mind
of the petitioner's son and if it so, then it may be disastrous
for the future of the petitioner's son".
G '
(emphasis supplied)

70. We are sorry to say that there is no material on record
as to on what basis the above inference was drawn or opinion
was formed by the High Court.
H
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1137
;. [C.K. THAKKER, J.]

71. Now, it has come in evidence that after death of Mithu A
(mother of Antariksh) and lodging of First Information Report by
her father against Abhijit (father of Antariksh) and his mother
(paternal grand mother of Antariksh), Abhijit was arrested by
police. It was also stated by Nil Ratan Kundu (father of Mithu)

- y that mother of accused Abhijit (paternal grand mother of 8
Antariksh) absconded and Antariksh was found sick from the
house of Abhijit.
72. In our considered opinion, on the facts and in the cir-
cumstances of the case, both the Courts were duty bound to
consider the allegations against the respondent herein and c
pendency of criminal case for an offence punishable under Sec-
tion 498A, IPC. One of the matters which is required to be con-
sidered by a Court of law is the 'character' of the proposed
-I guardian. In Kirit Kumar, this Court, almost in similar circum-
stances where the father was facing the charge under Section D
498-A, IPC, did not grant custody of two minor children to the
~
father and allowed them to remain with maternal uncle. Thus, a
complaint against father alleging and attributing death of mother
and a case under Section 498-A, IPC is indeed a relevant fac-
tor and a Court of law must address to the said circumstance E
while deciding the custody of the minor in favour of such per-
son. To us, it is no answer to state that in case the father is
convicted, it is open to maternal grand parents to make an ap-
propriate application for change of custody. Even at this stage,
the said fact ought to have been considered and appropriate F
order ought to have been passed.
73. As already noted, Antariksh was aged six years when
the trial Court decided the matter. He was, however, not called
by the Court with a view to ascertain his wishes as to with whom
he wanted to stay. The reason given by the trial Court was that G
none of the parties asked for such examination by the Court.
1 74. In our considered opinion, the Court was not right. Apart
from statutory provision in the form of sub-section (3) of Section
17 of 1890 Act, such examination also helps the Court in per-
H
1138 SUPREME COURT REPORTS [2008] 11 S.C.R.
-~-

A forming onerous duty, in exercising discretionary jurisdiction and
in deciding delicate issue of custody of a tender-aged child.
Moreover, the final decision rests with the Court which is bound
to consider all questions and to make an appropriate order
keeping in view the welfare of the child. Normally, therefore, in
B custody cases, wishes of the minor should be ascertained by
the Court before deciding as to whom custody should be given.
:'(
-
75. Before about a century, in Anni Besant (Mrs.) v. G
Narayaniah &Anr., 41 IA314 :AIR 1914 PC 41, under an agree-
ment, custody of two minor sons was with the mother who was
c staying in England. The father who was residing in Madras, in-
stituted a suit for custody of his sons asserting that he was the
natural guardian of the minors and was entitled to have custody
of both his sons. The trial Court decreed the suit which was
confirmed by the High Court.
D
76. The Judicial Committee of the Privy Council held that
under the Hindu Law, the father was th.e natural guardian of his >-
children during their minority. But it was stated that the infants
did not desire to return to India and no order directing the de-
fendant mother to send minors to India could have been lawfully
E made by an Indian Court.
77. Upholding the contention, allowing the appeal and dis-
missing the suit, their Lordships observed that it was open to
the plaintiff-father to apply to His Majesty's High Court of Jus-
F tice in England for getting custody of his sons. "If he does so
the interests of the infants will be considered, and care will be !--

taken to ascertain their own wishes on all material prints." (em-
phasis supplied) Since it was not done, the decree passed by
both the Courts was liable to be set aside.
G 78. We may, however, refer at this stage to a submission
of the learned counsel for the respondent-father. Referring to
Thrity, the counsel contended that this Court held that the Court
is not bound to interview the child. In that case, this Court did
not interview the minors and did not ascertain their wishes. It
H was, therefore, submitted that it cannot be said that non-exami-
NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1139
[C.K. THAKKER, J.]

nation of Antariksh or failure to ascertain his wishes by the trial A
Court was illegal or unlawful and vitiated the order.
79. We are unable to agree with the learned counsel. We
have closely gone through Thrity. Reading the decision as a
whole makes it amply clear that on the facts of the case, this
Court felt that calling minor children frequently in a Chamber by B
)'

Judges was not proper and such interviews really disturbed them
rather than giving them a respite and relief.
80. This Court reproduced some of the observations of
learned Judges of the High Court who had interviewed the mi- c
nors. The Court also considered sub-section (3) of Section 17
of 1890 Act and the power of the Court to interview a minor
child with a view to consider his/her preferences and observed;
"We may, however, point out that there cannot be any manner
of doubt as to the Court's power of interviewing any minor D
for ascertaining the wishes of the minor, if the Court
1 considers it so necessary for its own satisfaction in dealing
with the question relating to the custody of the minor".
81. Considering the facts of the case, however, the Court
refused to undertake that exercise and stated; E

"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 F
... 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.
G
The impressions as recorded by the learned Judges of
the Bombay High Court, go to indicate that the minor has
-f 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
H
1140 SUPREME COURT REPORTS [2008] 11 $.C.R.
-'\-
A 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
B 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 iri their orders after
their interviews with the girl who is of a tender age and is
placed in a very delicate and embarrassing situation
c 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
D
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
E the daughter to 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
F 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)
G 82. From the above observations and particularly the itali-
cized portion, it is abundantly clear that in peculiar facts and
circumstances of the case, this Court was satisfied that calling
i,.
a minor girl and interviewing her several times had not only not
served any useful purpose but had the effect of creating further
H depression and demoralization in her mind.
~
(

NIL RATAN KUNDU & ANR. v. ABHIJIT KUNDU 1141
[C.K. THAKKER, J.]

83. In the instant case, on overall considerations we are A
convinced that the Courts below were not right or justified in
granting custody of minor Antariksh to Abhijit-respondent herein
without applying relevant and well-settled principle of welfare of
the child as paramount consideration. The trial Court ought to
have ascertained the wishes of Antariksh as to with whom he B
wanted to stay.
84. We have called Antariksh in our chamber. To us, he
appeared to be quite intelligent. When we asked him whether
he wanted to go to his father and to stay with him, he unequivo-
cally refused to go with him or to stay with him. He also stated C
that he was very happy with his maternal grand-parents and
would like to continue to stay with them. We are, therefore, of
the considered view that it would not be proper on the facts and
in the circumstances to give custody of Antariksh to his father-
respondent herein. D
85. For the foregoing reasons, the appeal deserves to be
allowed and is accordingly allowed. The application filed by the
respondentAbhijit for custody of his son Antariksh is ordered to
be dismissed. In view of the facts and circumstances of the case,
however, there shall be no order as to costs. E
K.K.T. Appeal allowed.