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Smt. Jaswant Kaur & Others v. Shri Manjit Singh & Others S
Delhi High Court
Sep 12, 1984
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Summary of Opinion by R.N. Aggarwal, J.
Factual and Procedural Background
This appeal concerns custody of a male child, Raghubir Singh (nicknamed "Happy"), aged 10 years. The contesting parties are the paternal side (the father, respondent Manjit Singh Marwaha) and the maternal grandparents (the appellants). The parents were married on 15 August 1973 and the son was born on 16 August 1974. The couple separated on 17 August 1975 and the husband obtained a decree of divorce on 28 August 1980. The trial Judge awarded custody to the father; the maternal grandparents appealed against that decision.
Relevant factual points recorded in the opinion: the child had lived with and been brought up by the maternal grandparents since birth; the mother lived separately after separation and divorce and did not claim custody; the father remarried on 12 October 1980 and has, by that marriage, a daughter now aged about 2 years 8 months; the father is employed as an Assistant Cashier in Punjab & Sind Bank, obtained a law degree in 1982, and stated a present salary of Rs. 1479.03 (as per an affidavit dated 5 September 1984).
Legal Issues Presented
- Which of the two contending parties — the maternal grandparents or the father — should be given custody of the minor child?
- Whether the father's remarriage (and the presence of a step‑mother) is, by itself, sufficient ground to deny him custody of his son.
- How the paramount consideration of the child's welfare should be applied to the particular facts of this case (including the child's wishes and the living circumstances of both sides).
Arguments of the Parties
Appellants' (Maternal Grandparents') Arguments
- The child was born at and has been brought up by the maternal grandparents since birth; they had cared for and educated him (tuition and bus fare paid by them).
- Shifting custody now would be detrimental to the child's welfare because he is settled in a "known congenial and affectionate environment".
- The father has remarried and already has a child by the second marriage; it was argued this could lead to the step‑mother treating the child poorly, adversely affecting his mental and physical growth.
- At the time of marriage the respondent (father) was unemployed and had deserted his wife (statement offered in support of their broader view of the father's prior conduct).
Respondent-Father's Arguments
- A father is the natural guardian of his minor son and has an inalienable right to custody unless strong reasons exist to deny that right.
- The father's remarriage, standing alone, is not a valid ground for denying custody.
- The mother has not sought custody and has lived separately; the maternal grandparents are aging and may be less able to exercise control and guide the child in the future.
- The father is employed, has a law degree, is keen to educate and bring up the son, and is therefore in a better position than the grandparents to ensure the child's welfare going forward.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mrs. G.A. Ayyadorai Pillai v. E.H.B. David, A.I.R. 1960 Madras 519 | The opinion cites this case as authority relied upon by counsel for the father; the specific rule from this precedent is not stated in the opinion. | The court acknowledged it as one of the authorities relied upon by the father's counsel in support of the general contention that remarriage alone is not a ground to deprive a father of custody. |
| Tikka Pritam Singh Sodhi & Another v. S. Kashmir Singh, 1981 Hindu Law Reporter 34 | The opinion records that, in that case, a Single Judge of the Punjab & Haryana High Court held that a second marriage by itself is no ground to disentitle the father (natural guardian) to custody of his minor child. | The court treated this principle as directly supportive of the father's contention that remarriage alone does not disentitle him to custody; it informed the court's assessment of whether remarriage should deprive the father of custody in the present case. |
| A.V. Vankatakrishaniah & Another v. S.A. Sathyakumar, A.I.R. 1978 Karnataka 220 | The opinion records that this precedent was relied upon by counsel for the appellants; the specific rule or principle from the precedent is not stated in the opinion. | The court noted it was cited by the appellants in support of their submissions but the opinion does not explicate how the court applied any principle from this authority to its reasoning. |
| Kota Karrenna v. Kota Paravathama, A.I.R. 1978 Andhra Pradesh 398 | The opinion records that this precedent was relied upon by the appellants; the opinion does not state the specific principle taken from this case. | The court acknowledged the citation but did not state a specific application of the precedent in its analysis beyond noting it was relied upon by the appellants. |
| Manjit Singh v. Bakhshish Singh & Another, A.I.R. 1952 Punjab 129 | The opinion records that this case was cited by the appellants' counsel; the specific rule or principle cited from it is not described in the opinion. | The court noted the citation; the opinion does not detail any distinct application of this precedent in reaching its conclusion. |
Court's Reasoning and Analysis
The court structured its reasoning by applying established legal principles to the facts before it while keeping the child's welfare as the paramount consideration.
- Legal starting points:
- Under Hindu law the father is the natural guardian of the person and property of his minor son and enjoys preference over the mother; the father has a legal right to custody.
- Nevertheless, the court may deprive a father of custody in proper cases if the child's welfare so requires.
- Identified potential grounds for depriving the father:
- Complete neglect to maintain the child.
- Remarriage of the father leading to potential maltreatment by a step‑mother.
- Fact analysis relevant to those grounds:
- The parties separated in 1975 and thereafter did not live together. The father attempted restitution of conjugal rights earlier; later he filed for divorce and obtained it in August 1980. The father filed for custody on the same day the divorce was granted.
- The mother did not contest custody; she lived separately and had not claimed custody. Evidence showed the mother had left the child at the care of her parents.
- The child had been raised by the maternal grandparents since birth; they provided education and daily care. The child expressed a wish to remain with the grandparents, fearing possible ill‑treatment by a step‑mother based on what he had seen in pictures.
- However, the maternal grandparents were getting older (the grandmother was recorded as about 55 in 1981, thus over 58 at the time of the judgment) and one son indicated he was not ready to maintain the child; the maternal grandfather had not testified; the maternal uncles showed limited interest in the case.
- The father was employed, had completed a law degree, was likely to be promoted, lived in Delhi, and expressed keen interest in the child's upbringing and education. No evidence of unfitness, bad character, or neglect by the father was shown on record.
- Balancing welfare considerations:
- The court acknowledged the emotional difficulty of removing the child from familiar and affectionate surroundings, and carefully considered the child's expressed wishes.
- The court rejected a rule that would automatically disqualify any father who remarries. It observed that to assume in every case that a step‑mother would mistreat a step‑child would create an unwritten rule depriving all fathers who remarry of custody. The court found no evidence that the father would permit maltreatment and found him apparently capable of ensuring the child's welfare.
- Given the totality of facts — the father's stability, employment, qualifications, and active interest, versus the grandparents' advancing age and uncertain future capacity to exercise control and provide education — the court concluded that overall welfare would be better served by placement with the father.
- Protective measures and directions:
- To preserve the child's relationship with maternal relatives, the court directed that during long vacations (extending over five days) the maternal grandparents or maternal uncles shall have the right to take the child from the father's home, with the vacation period divided half and half between the father and the maternal relatives (extendable by mutual consent).
- Procedural remedies were provided in case of obstruction by either side — the aggrieved party could apply to the District Judge for enforcement or direction.
- The court allowed the parties liberty to move for modification of the order if circumstances change seriously affecting the child's welfare, and permitted the maternal relatives to approach the district court if the child's welfare were seriously jeopardised by wilful neglect of the father.
- The court noted the practical issue of the child's school being far (about 20 km) from the father's residence and directed the father to ensure the child's education is not prejudiced in the event a school change becomes necessary.
Holding and Implications
Holding: The appeal is dismissed and custody of the minor son is to be given to the father (respondent Manjit Singh Marwaha). The trial Judge's order awarding custody to the father is sustained.
Implications and direct effects:
- The child is to be placed in the custody of his father subject to the court's specific directions preserving contact with the maternal grandparents and maternal uncles during long vacations (period divided half and half, extendable by consent).
- Either party may approach the District Judge for enforcement if the other obstructs the agreed visitation/return arrangements; parties may move this court for modification if circumstances materially change.
- The father is directed to attend to the child's educational needs and arrange appropriate schooling if the distance to the present school makes daily attendance impracticable.
- Costs: each party to bear their own costs.
The opinion does not state that it establishes any new legal precedent; rather it applies existing principles (including that the father's remarriage alone does not automatically disentitle him to custody) to the facts and reaches a custody decision based on the child's welfare.
Disposition: Appeal dismissed.
R.N Aggarwal, J.:— The delicate question that arises for decision in this appeal is as to who out of the two contending parties should be given the custody of the male child named Raghubir Singh nick named ‘Happy’ aged 10 years. The contest is between the maternal grand parents and the father. The trial Judge has given the custody to the father. The maternal grand parents have come in appeal.
2. The respondent herein Manjit Singh Marwaha was married to Harjit Kaur (daughter of the appellants) on 15th August 1973. The couple was blessed with a son on 16th August 1974. The parties separated on 17th August 1975. There is no clear evidence regarding the causes of the rapture in the married life of the couple. The father filed a petition for restitution of the conjugal rights and according to him on the assurance given by the father of the wife that he would send Harjit Kaur he withdrew that petition but the wife did hot return to the marital home. The respondent (husband) filed a petition for divorce which was granted by an Additional District Judge on 28th August 1980.
3. The case of the appellants is that at the time of the marriage the respondent was unemployed and he had deserted the wife. Smt. Jaswant Kaur, the mother of the wife, gave evidence that after the marriage the respondent took the wife to Bombay, that after staying at Bombay for about 9 days they returned to Delhi and resided at Wazipur for about 3 months, and thereafter both of them came to their house, that the petitioner was not employed at that time and they helped the petitioner to get a job at Plaza Cinema, and that thereafter for some time they lived in block No. 11, Rajouri Garden.
4. The respondent (husband) gave evidence that after the birth of the child the wife started behaving rudely towards him and she would often quarrel with him, that she left the matrimonial home, in the absence on 19th September 1975 along with the child that he did his best to bring her back but the parents refused to send her. The respondent further stated that he waited for about six months for the wife to come back but he received a letter from her saying that she is not willing to live with him. He further deposed that his wife had illicit relation with some one living in the vicinity of the house of her parents.
5. On an examination of the pleading and the evidence produced on the record, as earlier stated, it is difficult to discover the real cause leading to the unhappy ending of the marriage. The undisputed facts are that after obtaining divorce on 16th August 1980 the respondent remarried on 12th October 1980 and from the second marriage he has a daughter (now aged 2 years and 8 months). The respondent was employed as an Assistant Cashier in the Punjab & Sind Bank in 1976 and was posted at Bombay. He was transferred to Delhi on 1st October 1982 and is now posted at Singhola branch. Delhi, the respondent in his affidavit dated 5th September 1984 has stated that he did graduation in law at Bombay in the year 1982 and that very soon he is likely to be promoted to an officer's grade. The respondent has further in the said affidavit stated that he is at present receiving a salary of Rs. 1479.03
6. On the other side the undisputed and proved facts are that the son was born at the house of the grand parents on 16th August 1974 and since his birth he is being looked after and brought up by the maternal grand parents. Both the maternal grand parents are alive. The son is receiving education in Happy Model School and is now studying in the fourth standard. His tuition fee and the bus fare are Rs. 265/- per month and this expense is being met by the grand parents. The grand parents with their two sons are staying at J-4/16, Rajouri Garden, New Delhi. The ground floor is on rent and the first floor and a barsati are in their personal occupation. Both the sons are now married. The elder son has two daughters and the younger son one daughter.
The grand-mother Smt. Jaswant Kaur in her affidavit dated 5th September 1984 has stated that Harjit Kaur, mother of the child, had after divorce taken nursing training in a Nursing School at Agra and she was doing private practice and was residing in Vikaspuri, opposite Janakpuri and that she is earning about Rs. 1000/- per month. She has further deposed that Harjit Kaur has not remarried.
7. Jaswant Kaur in her deposition in court on 22nd September 1981 had stated that she does not know where Harjit Kaur was then residing, that she had left their house about a year ago and they do not have her address nor has she written any letter to them. She further stated that Harjit Kaur had left the house without informing them and in spite of their efforts they have not been able to find out her whereabouts. She further stated that after receipt of the summons from the court they tried to find out her whereabouts but they could not trace her out. The learned counsel for the appellants, offering an explanation for the above statement, contended that the respondent was harassing Harjit Kaur and it was for this reason that Jaswant Kaur did not disclose the address of Harjit Kaur and kept it a secret. I am not impressed with this explanation offered by the counsel. The respondent had re-married in October 1980 and he was employed in a Bank at Bombay and there could be no occasion for the respondent to approach Harjit Kaur and harass her. It was only during the questioning of the child on 5th September 1984 that it was known that the mother resided in a flat in Vikaspuri and she visited her parents and the son sometime. It is not known at all why the mother is living separate. We have no evidence as to where the mother lived after August 1980. It is clear from the deposition of Jaswant Kaur that at least till September 1981 she had no information of the whereabouts of her daughter.
8. On 5th September 1984 I interviewed the child in the chamber with a view to ascertain his wishes. The child stated that he is studying in the fourth standard in the Happy Model School, Janakpuri and he is happy with the education he is receiving. To a question whether he would like to go and live with his father, the child replied: “I do not wish to go to my father. My father has remarried and I may not be treated well by my step mother.” To another question as to why does he think that he may not be treated well by the step mother the child stated that he has seen in the pictures step mothers mal-treating the step children and even accusing them of theft. To a question as to how he is being treated by his maternal grand parents and maternal uncles the child stated that he is very well treated and they have lot of love for him.
9. The impugned judgment shows that under the orders of the court the child had stayed with the father for about a week and the court was told that the child was happy in the company of his father and he had also expressed willingness to go with the father to Bombay.
10. The learned counsel for the father contended that the well recognised principle is that a father is not only the natural guardian but has an inalienable right to the custody of his miner son unless there are strong reasons to the contrary. The counsel contended that beyond the fact that the father had remarried and he has daughter now aged 2 years and 8 months from the second marriage there is no other circumstance brought out on the record to deny the father of his legal right to the custody of his son. The counsel contended that the mere fact that the father had remarried would not be a valid ground to the custody of his son. The counsel contended that the mere in support of his contention relied on Mrs. G.A Ayyadorai Pillai v. E.H.B David, A.I.R 1960 Madras 519 (1) and Tikka Pritam Singh Sodhi And another v.S Kashmir Singh 1981 Hindu Law Reporter 34 (2). In the case Tikka Pritam Singh Sodhi (supra) a single Judge of the Punjab and Haryana High Court held that the second marriage by itself is no ground to disentitle the father who is a natural guardian of the custody of the minor child without showing anything more.
11. Shri Chaudhary, learned counsel on behalf of the appellants, contended that the son was born in the house of the maternal grand parents and since birth he has been brought up and being educated by the maternal grand parents and that to shift the custody of the child at this stage would not be in the interest of welfare of the child. The counsel contended that the father had remarried and he has a daughter from the second wife and it was quite probable that he may have more issues in due course and that in our country it is well known that normally the behaviour and treatment of the step-mothers towards the step children is not good and that, therefore, it would not be it conducive to the welfare of the child to shift him from known congenial and affectionate environments to an uncertain and unpredictable atmosphere. He in support of his contention relied on A.V Vankatakrishaniah and another v. S.A Sathya kumar, A.I.R 1978 Karnataka 220 (3), Kota Karrenna v. Kota Paravathama, AIR 1978 Andhra Pradesh 398 (4) and Manjit Singh v. Bakhshish Singh and another, A.I.R 1952 Punjab 129 (5).
12. The trial Judge on an appreciation of the material placed before him came to the conclusion that the custody of the child should be given to the father. Since the passing of the above order, the father has been transferred to a branch of the bank at Shinghola, Delhi. The father is residing at C-366, Gali No. 9, Majlis Park, Adarsh Nagar. The father who also argued the case in person vehemently contended that the mother had not claimed the custody of the child and that, in fact, it seems, the mother is not taking any interest in the child and that the grand parents are getting old and in the years to come they would not be able to exorcise any control over the child and that as against the grand parents he is in a much better position to control and direct the education and the bringing up of his son. He further contended that it is clear from the evidence of Jaswant Kaur that they were unable to exercise any control over their daughter Harjit Kaur and how it can be expected that they would be able to guide and control the son who is in an adolescent stage of life.
13. Under the Hindu Law a father is the natural guardian of the person and property of his infant son. He, even, has preference over the mother. It is the legal right of the father to have the custody of the minor son. He is to look after the up-bringing and education of the child. In deciding a case of custody of a child the paramount consideration is the welfare of the child. In proper cases the court would be within its jurisdiction to deprive the father of the custody of his children Mainly two reasons have been advanced for depriving the respondent-father to have the custody of his son: (1) that the father completely neglected to maintain the child, and (2) that he had re-married and the step mother may not treat the child kindly and affectionately and which may have an adverse effect on the mental and physical growth of the child. I have earlier stated that the parties separated sometime in 1975 and thereafter they never resided together. The father filed a petition for restitution. According to him he withdrew the petition on an assurance given by his father-in-law that the wife would be sent back to live with him but she did not return to the marital home — thereby compelling him to file a petition for divorce which was granted in August 1980. The father was between the years 1976 and 1980 posted at Bombay. The father could possibly not have asked for the custody of the child during that period since he could not have any arrangement to keep the child at Bombay. He also may not have asked for the custody of the child in the hope that the wife would return to live with him. The father filed the petition for obtaining the custody of the son on the same day the divorce was granted.
14. The mother at no stage appeared to contest the petition. The petition was contested by the maternal grand parents. From the statement of Jaswant Kaur recorded on 22nd September 1981 it is clear that the mother had deserted the child and left him at the mercy of her parents and brothers. The mother even now admittedly, is living separate. We have no evidence about the manner and the way the mother is living.
15. The son who is now aged 10 is living with the maternal uncles and grand parents. Both the maternal uncles are married and have children. On 22nd September 1981 Smt. Jaswant Kaur gave her age as 55 years. She would be now over 58 years. The maternal grand father did not appear in the witness box. The maternal uncles have also not show any interest in the case. Jaswant Kaur in cross-examination stated that her elder son is not ready to maintain the child. The maternal parents would be getting older day by day and it is doubtful if they will be able to exercise proper control over the son in the future. True, at present the son is receiving full love and affection from the maternal grand parents and the maternal uncles but this is not the only thing required in the proper mental and physical growth. The imparting of education is very important in the proper growth of a child. Certain amount of control is also essential. The father who is now a law graduate is employed as an Assistant Cashier in the Punjab & Sind Bank and is posted at Delhi. He was present in court and he partly argued his own case. I see that he is very keen to have the custody of the son and bring him up and educate him.
16. The only question remains whether it would be proper to deny him the custody of the son because he has remarried and has a daughter. I am conscious that the common experience is that it is seldom that a step mother gives her love and affection to a step child but then if we start with this assumption in every case then it would become an unwritten rule that a father on remarriage would forfeit the right to have the custody of his children. The father, to me, seems to be a man with strong will and determination and he would in all probability not allow the step mother to maltreat the son. There is nothing in evidence regarding the character and habits which may disentitle the father to have the custody of the son. I also find no other circumstance that may render the father unfit to have the custody of the son.
17. In a case like the one before us I have always found it very difficult to take a decision. I feel unhappy that the son is to be shifted from his present familiar and affectionate surroundings, but, then, this step is being taken wholly in his interest and welfare. This definitely in the long run would be in the interest of the child.
18. To see that the son does not lose or it deprived of the love and affection of the maternal grand parents and the maternal uncles I feel that the son at intervals should have the opportunity to meet his maternal relations. I direct that during long vacation (extending over 5 days) the grand parents or the maternal uncles shall have the right to take the minor son with them from the father's home. The period of stay between the father and the maternal grand parents or maternal uncles shall during the long vacation be divided half and half. By mutual consent the period of stay on either side can be extended. On the expiry of the period of stay indicated above the father shall go and bring the child from the house of the maternal grand parents. It there is any obstruction offered by the father to the appellants taking the minor son it will be open to the appellants to move the district Judge for giving effect to this order. Likewise, if any obstruction is caused by the appellants in handing back the custody the father shall be at liberty to approach the District Judge for necessary directions. In case at any stage the minor's welfare is jeopardised seriously by any act of wilful neglect or otherwise of the respondent-father it shall be open to the appellants to have the district court for appropriate directions and relief. If at any time circumstances arise warranting modification of this order the parties are given the liberty to move this court for such change as this court may deem fit to make.
19. Before concluding I earnestly implore the parties not to take this decision as a personal triumph or defeat and they should act in unity to advance the interest and welfare of the child. I further hope and wish that the custody of the child shall be transferred to the father peacefully and without causing any embarrassment to the child.
20. In the process of the shifting of the custody of the child I see another problem that the father may have to face. The child is at present studying in the Happy Model School in the fourth standard. The said school is about 20 kilometers from the house of the father. It may not be advisable to send the child every day to such a long distance and this may necessitate the shifting of the child to a school near the house of the father. I am suite the father shall see that in case the shifting of the child from Happy Model School becomes necessary he shall put the child in a proper school and see that his studies do not suffer.
21. With the above directions the appeal is dismissed. The parties are left to bear their own costs.
Appeal dismissed.
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