42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
43.The word 'welfare' used in Section 13 of the Act has to be construed literally and 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. Though the provisions 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."
It is significant to register here that welfare does not mean fiscal and economic status or physical comforts only but it has a much wider connotation which, as I perceive, includes every thing which is required for best upbringing of a child in a healthy, lovable atmosphere of care and affection. This obviously includes basic bare minimum necessities of life and one of the most significant aspect is quality of home environment and need for stability in child's life. It is apt to quote Lindley, L.J. in Mac Grath, Re, (1893) 1 Ch 143 : 62 LJ Ch 208, wherein expounding sense and ambit of the word "Welfare" it was observed:-
"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 religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded."
In Rosy Jacob v. Jacob A. Chakramakkal:AIR 1973 SC 2090 Supreme Court has been pleased to hold:-
".....the principle on which the Court should decide the fitness of the guardian mainly depends on two factors: (i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors. This Court considering the welfare of the child also stated that, the children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children have, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society."
In Elizabeth Dinshaw v. Arvand M. Dinshaw: AIR 1987 SUPREME COURT 3 it has been held by the apex court as under:-
"8. Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our Chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country. We are also satisfied that the petitioner who is the mother is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper up bringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child to some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present."
(emphasis laid) Another referable decision is Muthuswami chettiar and another versus K.M. Chinna Muthuswami Moopanar: AIR 1935 Madras 195 where in speaking for the bench Hon'ble Beasley CJ has observed as under ;-
" It was also held that both according to Hindu law and English law a father is the natural guardian of his children during their minority and has therefore a paramount right to the custody of his children of which he can not be deprived unless it is clearly shown that he is unfit to be their guardian. Each case must depend upon it's own circumstances , and however paramount right of a father may be , that right in our opinion is liable to be defeated where it is shown that it is better in the interest of the minor and for his welfare that it should remain where it is.
If a minor has for many years from a tender age lived with grand parents or other near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor , theses are in our view , circumstances of very great importance. They bear both upon question of the interest and welfare of the minor and on the bonafide of the petitioner."
From the references of above judicial decisions, the precipitated residue is that in matters of custody of minor and/or child the sole and paramount consideration is welfare of the minor and welfare is not restrict in it's scope only to physical welfare or monetary well being but imbibes in itself and includes all factors required for caring and fostering of the child in a congenial suitable and healthy atmosphere. It includes all those factors which are included in the concept of life and liberty. It is only from such a point of view that the case of the petitioner is to be considered.
Turning towards present petition it is clear that detenue boy since his last three years is residing with respondents who are none else than his grand parents . Mother is accused of murdering his father and her husband. She has a paramour with whom she is now residing. There is no pleading that mother is alone or that she will abode separately from her paramour. If custody of the child is handed over to her then he will be an unwanted intruder in their lives. Her paramour will have no compassion for him nor will he relish his company. Under such circumstances it is remote to conclude that mother will be able to foster the child in a healthy and congenial atmosphere. Not only the lover and beloved are important in this matter but the society around them will also have an impact on the upbringing of the child. It is very doubtful that detenue will have friendship with the adolescents of his age. As observed above quality of home atmosphere and surrounding enviorenment are important aspects to be taken note of. For litigating accused of a murder charge, it will be difficult to rear up the child in an atmosphere required for the said purpose. At this point I add a note that When the boy was brought before the court it was noticeable that he was attached with the grandparents and was not willing to come down from the lap of his grandfather. He even did not recognise his mother and made no gesture to go to her. Moreover pleadings in the petition is woefully deficient to indicate that mother had any source of her own livelihood to foster the child. It is nowhere averred that she is capable of fostering the child in a healthy and crime free atmosphere. For an infant it is his surroundings which is of utmost importance as it guides, and determines his psychology which has lasting impact on the unpolluted mind of the child. As noted above the sole and prime concern in such type of proceedings is welfare of the child and only from that angle entire conspectus of case has to be decided. No doubt parents are natural and legal guardian of the child but if, welfare of the child does not lie in their company, the court cannot abjure it's legal and moral responsibility of acting as guardian of the child and to restore his/ her custody at a place and with the person where his / her welfare lies best. Child custody being a delicate and intricate issue requires humane and compassionate treatment. Change of custody of a child some time may yield detrimental results than what was anticipated and desired. In this respect regard can be had to apex court decision in Vishnu v. Jaya: AIR 2010 SUPREME COURT 2092 wherein it has been held as under:-
"6. In the aforesaid facts and circumstances, we are of the view that if the children are forcibly taken away from their father and handed over to the mother, it will only traumatize them and it will not do any good to anybody."
In Gaurav Nagpal v. Sumedha Nagpal: AIR 2009 SUPREME COURT 557: it has been observed by the apex court as under:-
"42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
43. The word 'welfare' used in Section 13 of the Act has to be construed literally and 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. Though the provisions 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."
On an over all analysis of the entire facts and circumstances of this Habeas Corpus Petition, the irresistible conclusion which emerges is that welfare of the child lies with respondent no.3 and not with the mother petitioner and therefore I am not inclined to change his custody. However at the same time mother be permitted visitation rights to meet her son.
In view of above this Habeas Corpus Petition is dismissed but mother will have the right to meet her son during day time, between sun rise and sun set in the house of respondent no. 3, in the presence of respondent no.3 or his wife as and when she likes. There shall be no order as to cost.
Dt.9.9.2011 Rk