Dr. Ranjit Barthakur, the present opposite party has filed a suit against his wife Mrs. Archana Barthakur, the present petitioner for restoration of conjugal rights. That suit is still pending in the court below. The name of the daughter is Amrita @ Ruma, whereas the name of the son is 'Baba'. Amrita was born on 31st January, 1977, where as Baba was born on 7th September, 1979.

During the pendency of the said suit the present opposite party filed an application seeking an order "for restoring the custody and care of the said minor children to the petitioner so as to enable the petitioner to make necessary arrangement for the education of the daughter in a suitable school and hostel at Shillong". The application was resisted by the pre sent petitioner alleging, inter alia, that the "unsavoury, un congenial and unfavourable environment is not conducive for proper upbringing of the minor children" and that she being the mother was equally anxious to see the welfare of her minor children. The Court below by an order dated 16th March, 1982 granted interim custody of the daughter Amrita @ Ruma to the present opposite party. Aggrieved, the petitioner has preferred this revision petition.

On 13th March, 1984 I beard the learned counsel for the parties. I felt that in view of the provisions of sub-clause (2) of section 23 of the hindu marriage act an endeavour may be made to bring about re-conciliation between the parties. The learned counsel for both the parties stated that they would require at least one month's time to inform their respective clients to appear before the Court for the said purpose. The case was, therefore, adjourned to 11th April, 1984 and the parties were directed to appear before me in person on that date. The case could not, however, be taken on 23rd April, 1984 and was adjourned to 25th April, 1984 and on that date the parties appeared before me in my chamber. I tried to bring about reconciliation between them but unfortunately the reconciliation could not be brought about. Hence, the revision petition was ordered to be posted for hearing on merits. On 3rd May 1984 after hearing the learned counsel for the parties, I felt the necessity of ascertaining the wishes of Kumar. Amrita @ Ruma, the daughter of the petitioner and the opposite party. The learned conusel for both the parties along with the petitioner and the opposite party as well as Miss Amrita @ Ruma appeared before me in my chamber on 22.5.84. I ascertained the wishes of Amrita and put certain questions to her. Her reply was recorded by me. She stated that she was at present residing with 'Nani' at Gauhati where she was pro secuting her studies in Udaygiri English School as student of Class II. She pointed out that her mother and father both were present in my chamber at the moment but categorically stated that she wanted to live with her mother. I asked her whether she would like to go and live with her father to which she rep lied that she would not like to go with him and live with him. When asked that she should live sometime with her father, she declined.

The learned counsel for the petitioner submitted that the interest and welfare of the minor is of paramount considera tion in such matters and as Amrita @ Ruma is aged 7 (seven) years and 4(four) months and is deeply attached to her mother and is not willing to go and live with her father, she should not be compelled to stay either with her father or in some hostel at Shillong. The submission was that as the mother is also highly educated and is earning about Rs. 2000/- per month as a Govern ment employee she is in a position to look after the welfare and studies of her daughter Ruma and son Baba. The learned counsel for the opposite party, on the other hand, submitted that keeping in view the welfare of Amrita @ Ruma it would be but fit and proper if she is kept in a hostel of a school at Shillong, where she can receive proper education, and all the expenses in that behalf shall be borne by the opposite party. In reply, the learned counsel for the petitioner submitted that Amrita @ Ruma is already receiving her education in Udaygiri English School at Gauhati and is staying with her 'Nani'. Her mother very after visits Gauhati and looks after Ruma as well. If at this tender age she is asked to Jive in a hostel, she would-be deprived of the love and affection of her mother which will certainly retard her mental and emotional development.

The court below has ordered that the present opposite party should get interim custody of his daughter Amrita @ Ruma on the condition that "he should secure a seat in a reputed residential school at Shillong where he should keep after getting the custody". It, therefore, directed the present opposite party to produce a certificate of his having admitted Amrita @ Ruma in the residential school within a week of his gettign the custody. The Court below, however, allowed the present petitioner to keep her son with her at Jorhat and should allow the father (the present opposite party) to meet his son at Jorhat.

In the instant revision petition there is no dispute about the custody of the minor son. The dispute is confined to the custody of Amrita @ Ruma and was further narrowed at the time of the final hearing of the revision petition when the learned counsel for the present opposite party submitted that Amrita should be put in some hostel at Shillong.

Children are the future hope of the country. Full develop ment and growth of their personality is of imperative necessity. Action and reaction of various factors operating in the society would mould and shape the character and personality of children. The environment at home and outside, at School and the streets most profoundly influence their psychological and pathological development. The surroundings in which they live and grow, the things which they hear and see, the food they eat and the clothes they wear, the school they attend and the fields where they play, conjointly affect their responsiveness, motivation and emotion. Social environment shapes the cogni tive and interpersonal development of children. But the most significant role is that of the parents. Their notion of life, their thinking, behaviour, education and attitude and above all their social and economic status affect the up-bringing and growth of their children. They may make or mar the future of their children. What would be the lot of a child whese father and mother are at war with each other throwing missiles of abuses at each other in public gaze? It has been seen, though rarely that on the pretext of the welfare of their child the parents try to settle their inter se score in the court and outside. They stake their ego on the application for custody of the child. More often it is nothing but exploitation of emotions and when stre tched too far it becomes black-mailing. The ultimate victim of embitterment of relations between father and mother and of the disappearance of the feeling of 'we' and 'ours is the poor child they start dealing with their child not like a human person ality but as a property to be acquired and disposed of. Par ental disability, intolerable home environment or break-up of family due to dessertion may push the child over the brink of destitution. It is here that the Court must, on a petition, inter vene to protect the welfare of the child, keeping at bay the legal rights of the disputants with regard to its custody. In matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party. (Dr. Mrs. Veena Kapoor vs. Varinder Kumar Kapoor, AIR 1982 SC 792), it is in this backg round that the problem posed in the instant case may be examined.

The present opposite party contends that in the later part of November, 1980, when he went to bring the present petitioner along with the children to Shillong, she "bluntly told that she would not go to live with the petitioner any more". The present petitioner refuted the allegation by saying that on 3rd May 1979, she was driven out by the present opposite party; hence she had no alternative but to seek shelter in the house of a relative. Ruma was then only two years old. The Peti tioner was pregnant at the time. She therefore informed her father late Hem Sarma, a retired Assistant Commissi oner of Income-tax, who came personally to Shillong on 4th May 1979 and implored the present opposite party to take her back and allow her to stay with him, but the opposite party was extremely rude and adamant and did not pay any heed, hence she had to come to Gauhati along with her daughter, but she was not allowed to take her belongings with her. How ever, on 9th or 10th May, 1979 she again went back to Shillong and wanted to stay in the house of the present opposite party but he and his mother did not allow her to do so and turned her away. She found out a job for her as teacher at Shillong. While she was in her advanced stage of pregnancy, the present opposite party did not care to enquire of her and also of Ruma. Ultimately she came to stay with her father at Gauhati on 18th June, 1979. She is now employed at Jorhat.

I interviewed Amrita, who is now seven years old. She appeared before me in the presence of her mother and father. While I was questioning her I had noticed that she was all the time holding the fingers of her mother firmly in her hand. On being asked that she should go and live with her father also, she started crying and said she would not do so.

Relying on the following observation of the Supreme Court in Thirty Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka, AIR 1982 S.C. 1276, the learned counsel for the present opposite party submitted that Amrita should be kept in a hostel at Shillong :

"Home influence plays a very important role in shaping the life of every child. When the atmosphere in a house, vitiated and rendered surcharged with tension as a result of bitter squabbles between husband and wife, causes misery and unhappiness to a child, who was to live inconstant psy chological strain in such a broken home in view of the bitter relationship between her parents for each of whom she has great affection, the healthy and normal growth of the child is bound to be seriously affected. In the interest and for the welfare of the child in such case, the child is necessarily to be removed from such un healthy environment of a broken home surcharged with-tension. In such a case, the proper and best way of serving the interest and welfare of the child will be to remove the child from such atmosphere of acrimony and tension and to put the child in a place where the embi ttered relationship between her parents does not easily and constantly affect her tender mind."

True it is that if the. circumstances of a particular case so warrant the child may be removed from the house and kept in a hostel. In Thirty Hoshie Dolikuka (supra) the girl was 11 years old. The atmosphere at her home had caused a very great strain on her nerves and had certainly affected her healthy growth, hence it was decided that she should be removed to a Boarding school where she could live a normal healthy life and would have good opportunity of proper education and healthy growth. In the instant case, the mother and father of Amrita have not lived together ever since she was two years old. She is now 7 years. Her father is living in Shillong whereas her mother lives in Jorhat. Amrita is living with her maternal grand mother (Nani) at Gauhati, where the "embitterred relationship between her parents do not constantly affect her tender mind". There is nothing on record to show that there is any school at Shillong providing boar ding and lodging facilities to children of seven years age group and even if there is any, it is not known because there is no evidence before me, that there is any vacancy in such a school to get Amrita there at this stage. Moreover, to secure admission in a school providing lodging and boarding facilities to children of the age group of Amrita is not so easy; at times it is even impossible. The Court will not pass any order the compliance of which may not be possible. Admittedly, there is no school in Assam which provides for boarding and lodging facilities to minor children and as there is no evidence that any such school at Shillong would be willing to admit Amrita at this stage in its hostel, any direction of the Court to get her admitted in a hostel at Shillong would be futile. Amrita is studying in Class II in Udaygiri English School at Gauhati. If she is given in the custody of the father she would be put to great tension and mental agony. She being a female child of seven years' old, needs the love and affection of her mother to whom she is greatly attached. Admittedly she had been away from the company of her father for the last five years. She would, therefore, not find any happiness if she is placed in the custody of her father. The mother has a steady income and she can bear the expenses of her daughter at the school and otherwise. The welfare of Amrita alias Ruma will, in my opinion, be fully protected if she remains, in the custody of her mother.

For the reasons in the foregoing, the petition is allowed and the impugned order is set aside. However, in the circum stance of the case, the parties shall bear their own costs.