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G. Eva Mary Elezabath v. Jayaraj And Others
Factual and Procedural Background
The petitioner, G. Eva Mary Elezabath, filed a habeas corpus petition seeking a direction to the respondents to produce the minor male child Samuel Rily Macon and for suitable custody orders. The petitioner and her family are members of the Church of Christ at Kottur, Chennai. The child's mother, Tmt. Mallika, died on 17-9-2002; the petitioner alleges that the father, Jayaraj (first respondent), abandoned the one-month-old child at the Church premises thereafter. The child was initially cared for by a woman named Vasanthi for about 15 days, then returned to the Church, and on 16-10-2002 was handed over by the Church Pastor to the petitioner, who cared for and educated the child (admitted to Happy Home Nursery School at Kottur) for about two-and-a-half years.
The first respondent (father) asserts that the Church Director had initially entrusted the child to Vasanthi and later to the petitioner's mother; upon his return to Chennai he claimed custody, alleging the Director advised him to remarry and take care of the child. The petitioner alleges that the first respondent first forcibly took the child on 15-12-2004 but returned the child at police intervention; she alleges a repeat forcible removal on 4-1-2005, after which she filed the habeas corpus petition.
The Court issued notice, an interim arrangement returned the child to the petitioner (noting the child's visible affection for her and that the child had to attend school), parties filed affidavits and undertakings to care for the child, and the matter was taken up for final disposal. The Court heard counsel for the parties and the Additional Public Prosecutor (representing respondents 2 and 3).
Legal Issues Presented
- Whether, on an application for a writ of habeas corpus seeking custody of a minor, the child should be delivered to the petitioner who had been in de facto custody and responsibility for the child for approximately two-and-a-half years, or to the natural guardian (the father) who claims legal custody.
- Whether the question of custody should be determined on the legal rights of the parties (father's right as natural guardian) or on the sole and predominant criterion of the welfare and best interest of the minor child.
- Whether the father's remarriage (as alleged) affects his entitlement to custody and whether the alleged abandonment by the father after the mother's death justifies denying him custodial rights in this case.
Arguments of the Parties
Petitioner's Arguments
- The determinative test for custody is the welfare and best interest of the child, not the strict legal rights of the parties (citing authority to that effect).
- The petitioner had cared for, raised and educated the child for approximately two-and-a-half years (from 16-10-2002 until 15-12-2004 and then again after interim orders) and therefore custody should remain with her in preference to the father.
- The father's conduct — allegedly abandoning the child after the mother's death and only showing interest much later — affected the child's welfare and education.
First Respondent's (Father's) Arguments
- The first respondent asserted he is the natural guardian and, as such, is entitled to custody of the child.
- He explained that the child had been temporarily entrusted by the Church to others (first Vasanthi, then the petitioner's mother) and that on his return he obtained the child from the Church Director after remarrying on 20-9-2004.
- He denied abandonment of parental responsibility as a permanent surrender of custody and relied on authorities (cited in his support) concerning the father's primary entitlement to custody.
Arguments / Authorities Cited by the Additional Public Prosecutor
- The Additional Public Prosecutor cited several Supreme Court and other authorities concerning guardianship, the rights of parents, and the principles to be applied in habeas corpus custody matters (listed in the opinion).
- One cited authority (Rajesh K. Gupta v. Ram Gopal Agarwala) was invoked for the principle that habeas corpus inquiries into custody focus on whether the present custody is lawful or whether the welfare of the child requires a change.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : AIR 1987 SC 3 | Cited by the petitioner to support the contention that custody must be decided on the welfare of the child rather than on the legal rights of the parties. | The Court noted this authority as aligning with the petitioner's submission that welfare is the predominant criterion (see paras 4–5, 20). |
| Mrs. Annie Besant v. G. Narayaniah, AIR 1914 PC 41 | Cited by the first respondent (one of the authorities invoked) concerning custody and guardianship principles. | Included among the authorities from which the Court distilled the general principles governing guardianship and custody (see para 6 and para 8). |
| D. Rajaiah v. Dhanapal, AIR 1986 Madras 99 | Cited by the first respondent in support of his position on custody/guardianship. | Listed by the Court as one of the authorities canvassed; the Court relied on the aggregate of cited authorities to state controlling principles (para 6, 8). |
| S. Abboy Naidu v. R. Sundara Rajan, AIR 1989 Madras 129 | Cited by the first respondent in support of his claims about parental/guardian rights. | Recognized by the Court among the case law informing the principles summarized at paragraph 8. |
| J. Velan v. G. Muthu, (1990) 2 Med LJ 417 | Cited by the first respondent as part of local authorities on custody/guardianship. | Recorded by the Court as one of the cases from which general principles were derived (para 6, 8). |
| Jayalakshmiammal v. L. Venkataramaiah, (1997) 2 CTC 37 (Madras) | Cited by the first respondent in support of father’s custodial claims. | Included in the list of authorities the Court considered in framing the governing principles in paragraph 8. |
| Krishna Raj v. Rajasekar, (1997) 2 CTC 92 (Madras) | Cited by the first respondent regarding custody/guardianship. | Counted among the precedents referred to by the Court when stating the legal principles at para 8. |
| K. Mathivanan v. R. Rajalakshmi, (2000) 4 CTC 212 | Cited by the first respondent as authority on custody/guardian issues. | Listed by the Court as part of the body of case law from which the principles in para 8 were drawn. |
| G. Bakthavatsalam v. K. Srinivasan, (2000) 1 Mad LJ 330 | Cited by the first respondent on guardianship/custody questions. | Included among authorities the Court referred to in setting out the applicable principles (para 8). |
| R. Kasthuri v. R. Raveendran, (2003) I Mad LJ 738 : AIR 2003 Madras 302 | Cited by the first respondent in support of custody/guardianship propositions. | Referenced by the Court as part of the precedent material informing its summary of legal principles (para 6, 8). |
| V. Maria Pushpa Janet Rajam v. G. Anantha Jeyakumar, (2003) 3 CTC 577 : AIR 2004 Madras 1 | Cited by the first respondent on custody/guardianship grounds. | Noted by the Court among the authorities relied upon to state the legal principles (para 6, 8). |
| Anokha v. The State of Rajasthan, (2004) 1 CTC 702 : AIR 2004 SC 2820 | Cited by the first respondent as a precedent relevant to custody/guardianship issues. | Included in the list of authorities the Court considered when summarising the controlling principles in para 8. |
| Rajesh K. Gupta v. Ram Gopal Agarwala, (2005) 5 SCC 359 : AIR 2005 SC 2426 | Cited (para 18) for the principle that, in habeas corpus custody applications, the main considerations are whether the present custody is lawful or unlawful and whether welfare requires a change of custody. | The Court expressly relied on this authority for the correct approach to habeas corpus custody disputes (para 18) and applied that standard in reaching its decision. |
| Ms. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 : AIR 1999 SC 1149 | Cited by the Additional Public Prosecutor among authorities concerning guardianship/parental rights and related legal principles. | Listed by the Court as one of the Supreme Court authorities informing the principles summarized at para 8. |
| Chandrakala Menon v. Vipin Menon, 1993 SCC (Cri) 485 | Cited by the Additional Public Prosecutor in the course of argument on custody-related principles. | Included in the array of authorities used by the Court in forming the principles set out at para 8. |
| Rajiv Bhatia v. Government of NCT of Delhi, (1999) 8 SCC 525 : AIR 1999 SC 3284 | Cited by the Additional Public Prosecutor among authorities on guardianship/child welfare themes. | Recognized by the Court as one of the precedents contributing to the legal summary at para 8. |
| State of Gujarat v. Kaushikbhai K. Patel, (2000) 5 SCC 615 : AIR 2000 SC 2175 | Cited by the Additional Public Prosecutor, included among Supreme Court authorities referenced during argument. | Recorded by the Court as part of the case law considered in setting out the governing principles at para 8. |
| Kumar V. Jahgirdar v. Chetana K. Ramatheertha, (2001) 4 SCC 682 : AIR 2001 SC 2179 | Cited by the Additional Public Prosecutor as a Supreme Court authority relevant to custody/guardianship considerations. | Included in the compendium of authorities the Court cited in para 8 when distilling the principles that govern custody disputes. |
Court's Reasoning and Analysis
The Court proceeded by (i) establishing the factual matrix; (ii) identifying and summarising the legal principles drawn from the authorities cited by the parties; and (iii) applying those principles to the facts before it.
Factually, the Court found that the child had been in the care of the petitioner (and her family) from 16-10-2002, that the petitioner had admitted the child to a local nursery school, and that the first respondent had not shown interest for about two-and-a-half years. The Court also recorded the episodes in which the father purportedly took the child on 15-12-2004 and again on 4-1-2005 (the second occasion allegedly with police officers), and that at interim stage the child showed an obvious affection for the petitioner when returned to her custody.
Legally, the Court set out a concise statement of controlling principles (para 8). Those principles include (inter alia): the statutory limitation under Section 19 of the Guardian and Wards Act that a guardian cannot be declared during the lifetime of the father unless the father is unable to be guardian; the primacy of the father's position as natural guardian subject to exceptions; and the overriding consideration that custody disputes must be resolved by reference to the welfare of the child, which is to be understood in the widest sense (including moral and ethical welfare), and not by a mechanical application of legal rights. The Court also noted that custody orders are interlocutory and may be varied upon proof of changed circumstances in the child's best interest.
On application of these principles to the present facts, the Court observed several points: (a) there was evidence that the father had not taken care of the child for two-and-a-half years and that during that period the petitioner's mother and then the petitioner herself had custody; (b) factual discrepancies existed between the first respondent's affidavit and the affidavit of the Church Director; (c) the father's explanation that he remarried only on the advice of the Church Director (to enable him to take care of the child) was disputed by the Director and found to be not persuasive; and (d) when the child was returned to the petitioner during interim proceedings the child showed evident affection for the petitioner and needed to attend school.
The Court emphasised the controlling standard from Rajesh K. Gupta v. Ram Gopal Agarwala that in habeas corpus custody applications the central inquiry is whether the existing custody is lawful and whether the welfare of the child requires a change. Applying that test, and balancing the father's legal rights as natural guardian against the factual history and the child's welfare, the Court concluded that custody should remain with the petitioner.
Holding and Implications
Holding: The Habeas Corpus petition is allowed and custody of the minor child Samuel Rily Macon is to remain with the petitioner, G. Eva Mary Elezabath.
Implications and direct consequences:
- The immediate and direct effect is that the child will remain in the care and custody of the petitioner so that the child's education and welfare (as arranged by the petitioner) can continue uninterrupted (paras 17, 19, 21, 24–25).
- The Court expressly recognised that the first respondent remains the natural guardian with legal rights; the Court observed that the first respondent is free to approach the Family Court to establish his legal right to custody (para 22). The Court's interim and final custody observations are not intended to preclude the Family Court from deciding the legal issue raised before it (para 23).
- The judgment applies established principles (welfare paramount, father's prima facie right subject to best interests of the child) rather than purporting to set new legal precedent. The Court applied existing authority and the welfare standard to the particular facts of this case.
This summary is limited to and based exclusively on information contained in the provided opinion. No information has been inferred beyond what appears in the opinion.
The Judgment of the Court was delivered by
M. Karpagavinayagam, J.:— G. Eva Mary Elezabath has filed this Habeas Corpus petition, seeking for a direction, directing the respondents to produce the minor male child Samuel Rily Macon before this Court and pass suitable orders for custody.
2. According to the petitioner, she and her family members are members of the Church of Christ situated at Kottur, Chennai. Jayaraj, first respondent herein, was also a member of the Church. The first respondent and his wife Tmt. Mallika used to visit the Church frequently. The first respondent's wife Mallika delivered a male child on 10-8-2002. The said Mallika committed suicide on 17-9-2002; thereupon, Jayaraj, father of the child, abandoned the one month old male baby in the Church premises and left the place. Thereafter, one Vasanthi took care of the child for about 15 days. However, she handed over the child back to the Church, since she was not able to maintain the child. Then, Pastor of the Church handed over the child to the petitioner on 16-10-2002 to take care of the child. Accordingly, she and all her family members took care of the child. The child was admitted in Happy Home Nursery School at Kottur. For two-and-a-half years, the first respondent, father of the child, did not evince any interest. Suddenly on 15-12-2004, the first respondent with some men came to the house of the petitioner and took away the child forcefully. Then, the petitioner approached Kelambakkam Police Station, third respondent. At the intervention of police, the first respondent handed over the child back to the petitioner. In the meantime, she came to know that the first respondent married one Maria as second wife. Again on 4-1-2005, the first respondent, along with some police officials of the third respondent Kelambakkam Police Station, came and forcefully took away the child. Then, the petitioner rushed to the second respondent police, who are jurisdiction police, and complained the matter but no action has been taken. The child is hardly two-and-a-half years old. Due to the act of the first respondent in snatching away the child from the custody of the petitioner, who brought him up and gave education through Happy Home Nursery School, the child's welfare and education have got highly affected. Hence, this Habeas Corpus Petition. According to the first respondent, after the death of his wife, on his request, the Church Director handed over the child to one Vasanthi to look after the child at the expenses of the Church. The said Vasanthi was unable to maintain the child and handed over the child back to the Church. Then, the Director of the Church, gave the child to the petitioner's mother for maintenance. At that time, the first respondent was not in Chennai. As soon as he came back, he was informed by the Director of the Church that the child was with the petitioner's mother. Then, the Director of the Church advised the first respondent to get married; have a family life and take care of the minor child Samuel Rily Macon. Accordingly, he got married on 20-9-2004. Thereafter, both he and his wife met the petitioner's mother and requested her to hand over the child. The child was handed over to the Director of the Church, who, in turn, handed over the child to him. Then, suddenly on 28-12-2004, the petitioner' mother and her persons came and forcefully took the child. Therefore, he went to Kelambakkam Police Station and gave a complaint to the third respondent. Then, at the intervention of Kottururam police, the child was handed over back to him and his wife in the presence of the Church Pastor. He is the natural guardian, being father of the child, and, as such, he is entitled to the custody of the child.
3. In support of the respective pleas, arguments were advanced by the learned counsel for the parties and also the Additional Public Prosecutor.
4. The petitioner's main contention is that the question of custody of the minor, child is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor and, as such, the petitioner, who brought up the child for two-and-a-half years and gave education, alone would be entitled to the custody in preference to the first respondent, father of the child, who has recently married.
5. In support of his contention, learned counsel for the petitioner would cite a decision reported in (1987) 1 SCC 42 : AIR 1987 SC 3 (Elizabeth Dinshaw v. Arvand M. Dinshaw).
6. In support of the plea made by the first respondent, the following decisions are cited:
(i) AIR 1914 PC 41 (Mrs. Annie Besant v. G. Narayaniah);
(ii) AIR 1986 Madras 99 (D. Rajaiah v. Dhanapal);
(iii) AIR 1989 Madras 129 (S. Abboy Naidu v. R. Sundara Rajan);
(iv) (1990) 2 Med LJ 417 (J. Velan v. G. Muthu);
(v) (1997) 2 CTC 37 (Madras), (Jayalakshmiammal v. L. Venkataramaiah);
(vi) (1997) 2 CTC 92 (Madras), (Krishna Raj v. Rajasekar);
(vii) (2000) 4 CTC 212 (K. Mathivanan v. R. Rajalakshmi (Died);
(viii) (2000) 1 Mad LJ 330 (G. Bakthavatsalam v. K. Srinivasan);
(ix) (2003) I Mad LJ 738 : (AIR 2003 Madras 302) (R. Kasthuri… v. R. Raveendran….);
(x) (2003) 3 CTC 577 : (AIR 2004 Madras 1) (V. Maria Pushpa Janet Rajam v. G. Anantha Jeyakumar);
(xi) (2004) 1 CTC 702 : (AIR 2004 SC 2820) (Anokha v. The State of Rajasthan): and
(xii) Guardian and Words Act by M.C Agarwal, 1986 Edition — Page No. 114.
7. The learned Additional Public Prosecutor appearing for respondents 2 and 3 also would cite the following authorities:
(i) (1999) 2 Supreme 123 : ((1999) 2 SCC 228 : AIR 1999 SC 1149) (Ms. Githa Hariharan v. Reserve Bank of India);
(ii) 1993 SCC (Cri) 485 (Chandrakala Menon (Mrs) v. Vipin Menon (Capt.);
(iii) (1999) 7 Supreme 561 : ((1999) 8 SCC 525 : AIR 1999 SC 3284) (Rajiv Bhatia v. Government of NCT of Delhi);
(iv) (2000) 5 SCC 615 : AIR 2000 SC 2175 (State of Gujarat v. Kaushikbhai K. Patel); and
(v) (2001) 4 SCC 682 : AIR 2001 SC 2179 (Kumar V. Jahgirdar v. Chetana K. Ramatheertha).
8. The principles laid down by various Courts, including the Supreme Court, are as follows:
(1) No order declaring a guardian can, by reason of Section 19 of the Guardian and Wards Act, 1890, be made during the lifetime of the father, unless in the opinion of the Court he is unable to be the guardian.
(2) Failing the father only, the mother comes into picture and she could assume such guardianship.
(3) The dominant factor for consideration of the Court is the welfare of the child. The welfare of the minor children is not to be measured only in terms of money and physical comforts. The word “welfare” must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being.
(4) The father as natural guardian is primarily entitled to the custody of the children unless there are overwhelming circumstances to the contrary.
(5) The Court is bound to take into consideration of the facts and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well-being of the minor.
(6) The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody.
(7) A Hindu father is the natural guardian of the children during their minority and he has prima facie a paramount right to their custody and must be given such custody unless he is unfit or there are other circumstances.
(8) The welfare of the minor child is a very important matter for consideration and the interest and welfare of the minor are even paramount to the rights of the father.
(9) In a matter relating to the custody of a minor child, the interest and welfare of the child are of paramount consideration and the convenience or pleasure of the parents.
(10) The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
(11) The orders relating to custody of children are by the very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.
9. The above guidelines would make it clear that the first respondent as of right cannot claim that custody of the child should be handed over to him as the natural guardian, especially when there are circumstances to show that the minor child was abandoned by him immediately after the death of his first wife. Originally, the Director of the Church handed over the child to one Vasanthi to take care of the child and as she was unable to maintain the child, the Child was handed over back to the Church, Which, in turn, handed over the child to the petitioner's mother.
10. It is the case of the first respondent that only on the advice of the Director of the Church, he married for the second time, which is stoutly denied by the Director of the Church, by filing an affidavit. Further, various details about the facts, which have been given in the affidavit filed by the first respondent, are not found to be correct, in the light of the detailed written statement filed before this Court by Dennis H. Johnson, Director of the Church.
11. We are not inclined to give any finding with reference to the various allegations made by the first respondent against the Director of the Church or by the Director against the petitioner. However, it is to be mentioned that admittedly the first respondent had not chosen to take care of the child for two-and-a-half years; during that period, the petitioner's mother was given custody by the Director of the Church and, after her custody, it is the petitioner, who took care of the child and admitted the child in Happy Home Nursery School at Kottur. These facts have not been denied by the first respondent.
12. Now, it is the stand of the first respondent that he married Maria as second wife on 20-9-2004 only for the purpose of taking care of the child.
13. The said stand taken by the first respondent is quite preposterous. As a matter of fact, an affidavit has been filed by the petitioner to show that the child was in her custody from 16-10-2002, which was handed over by the Church and, only on 15-12-2004, the first respondent came to her house and took away the child.
14. According to the petitioner, at the intervention of Kelambakkam Police, the first respondent handed over the child back to the petitioner, by considering the welfare of the child; again on 4-1-2005, the first respondent, with the help of the police, came to her house and forcefully took away the child and only thereafter, she had to rush to this Court by filing this Habeas Corpus petition.
15. This Court ordered notice to the first respondent and he came to the Court with the child. As an interim arrangement, the child was handed over to the petitioner, since it has represented that the child had to attend the school. This Court, in fact, noticed that when the child was handed over to the petitioner by the first respondent, the child was so anxious to go with the petitioner with so much of affection. Thereafter, the interim arrangement continued and, ultimately, the matter was taken up for final disposal.
16. We had directed the parties to file affidavits, giving an undertaking to look after the child well, if custody is granted to them. Accordingly, both the parties filed their affidavits. The first respondent's affidavit, with the supporting affidavit of his second wife, would indicate that the second wife got recently married to the first respondent. As per the affidavits, the first respondent got married Maria on 20-9-2004. If actually the first respondent wanted to marry the said Maria for the sake of the child, he would have taken action for securing the custody of the child even before the marriage. That was not done. But, now, he claims that he got married Maria on 20-9-2004 only on the advice of the Director of the Church. As noted above, this fact has been denied by the said Director. Ultimately, the first respondent came to the house of the petitioner only on 15-12-2004 to take the child. Thereafter, at the intervention of the police, taking into consideration of the welfare of the child, the child was handed over back to the petitioner. However, surprisingly, again on 4-1-2005, the first respondent, along with the police, who earlier intervened and got the custody of the child for the petitioner, thought it fit to take away the child again. Accordingly, the same was done.
17. As indicated above, though the first respondent is the natural guardian, we are not inclined to hand over the custody of the child to him, especially when the minor child is studying in school, arranged by the petitioner. Also, the minor child, aged about 3 years, is in the care and custody of the petitioner, who is a spinster. Therefore, it would be appropriate to continue the said arrangement so that the paramount interest of the child will be protected by the petitioner.
18. It is well settled in (2005) 2 Crimes 161 : ((2005) 5 SCC 359 : AIR 2005 SC 2426) (Rajesh K. Gupta v. Ram Gopal Agarwala) that in an application seeking a writ of habeas corpus for custody of minor child, the principal consideration for the Court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else.
19. In the light of the peculiar facts, we are of the view that it would be better if the petitioner is allowed to have the custody of the child so that the child will continue his education under the care and affection of the petitioner, which she had for the past three years.
20. As held by the Supreme Court, whenever a question arises pertaining to the custody of a minor child, the Court has to decide about the custody not on the consideration of the legal rights of the parties, but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.
21. In our considered opinion, it would be in the best interest and welfare of the minor child if the custody of the child is allowed to be in the hands of the petitioner.
22. It is true that the first respondent is the natural guardian and he has got a legal right. In the light of the legal position, it is open to the first respondent to approach the Family Court to establish his legal right.
23. The observation made by this Court with reference to the interim Custody of the child in the hands of the petitioner would not stand in the way of the Family Court deciding the issue raised before it.
24. With the above observation, this Habeas Corpus petition is allowed.
25. Petition allowed.
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