Guardian and Wards Act, 1890:
ss.7 and 12 – Application under – By father (respondent) – Seeking custody of minor girl-child – Alleging that mother (appellant) was obstructing his visiting rights granted by the Court, pursuant to divorce between the parties – Later the respondent gave up the claim of custody and sought direction to admit the child in any reputed boarding school in India at his expenses – Family Court directed that custody of the child would be with mother alongwith visiting rights of father and that the child would be admitted to boarding school after attaining the age of 12 years i.e. for academic session 2019-2020 – Cross-appeals by the parties – High Court by interim order dated 26.4.2018, directed the child to be admitted in a reputed residential school at Ooty for the session 2018-2019 – Pursuant to direction of the High Court, the child was admitted to the residential school at Ooty – Appeal to Supreme Court – Held: While taking a decision regarding custody or issues pertaining to a child, welfare of the child is of paramount consideration – The courts in exercise of parens patriae jurisdiction have to consider the welfare of the child as of paramount importance – It is evident from the record that father’s intention had always been that the child got best education at a neutral environment – The Court has to take extra caution to ensure that the child is kept away from negative influences – What is in the best interest of the child depends on the facts and circumstances of each case – It would be appropriate that the High Court finally decides the appeals after taking into consideration subsequent materials. Disposing of the appeals, the Court
HELD: 1. When the child has to go in the environment, where there is marital discord between her parents affecting the peace of mind of all including the parents and children, child suffers physical and mental distress. The ill consequences of the discord between mother and father effect the child in her normal upbringing and is a negative factor on child’s personality and upbringing. [Para 16] [224-E-F]
Vivek Singh v. Romani Singh (2017) 3 SCC 231
– relied on.
2. While taking a decision regarding custody or other issues pertaining to a child, welfare of the child is of paramount consideration. Every child has right to proper health and education and it is the primary duty of the parents to ensure that child gets proper education. The Courts in exercise of parens patriae jurisdiction have to decide such delicate question. It has to consider the welfare of the child as of paramount importance taking into consideration other aspects of the matter including the rights of parents also. What is in the interest of the child depends on the facts and circumstances of each case and has to be decided on its own merits without adhering to any fixed formula or rule. [Paras 18, 19 and 22] [225-E; 225-F-G; 230-F] Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 : [2008] 16 SCR 396 ; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544:
[1983] 1 SCR 49; Nutan Gautam v. Prakash Gautam (2019) 4 SCC 734 – relied on.
3. In the present case, it is the respondent-father, who is bearing all expenses of the child in the boarding school at Ooty, which are more than Rs.10 lakhs p.a. In addition to the above expenses of the school, the respondent also offered to bear expenses of flight charges and stay of the appellant-mother when she visits the child at Ooty from Jamshedpur. From the material on record, the Court is satisfied that the respondent’s intention has always been that the child should get best education at a neutral environment, which may help in developing her personality. The appellant has right from beginning opposing the prayer of the respondent to send the child in the boarding school and tried to find fault with the school at Ooty. In the circumstance in which the child is there, the Court has to take extra caution and precaution to ensure that the child is kept away from negative influences. Even the Family Court has directed for admitting the child in boarding school but from Academic Session 2019-2020. The High Court initially directed that the child to be admitted in Sacred Heart Convent School, Jamshedpur and after receiving a report from the said School, the High Court directed for admission of the child in Good Shepherd International School, Ooty for the Academic Session 2018-2019, which order is under challenge in these appeals. [Paras 13, 14] [223-E-H; 224-A-B]
4. The order dated 26.04.2018 passed by the High Court, impugned in the present appeals, has been given effect to and both the appeals being still pending in the High Court awaiting final decision, it would be appropriate that the High Court may finally decide the appeals after hearing the parties. There is no justification in interfering with this order at this stage. [Para 15] [224-C]
5. The High Court, while deciding the appeals finally, should also take into consideration subsequent materials which may be brought before it by the parties including the progress report of the child from Good Shepherd International School, Ooty. It is also open for the High Court to take decision on the medical issues and if necessary to obtain medical reports as may be required. The High Court during hearing of the appeals had already interacted with the child on many occasions and it is for the High Court to take a decision with regard to interacting with the child. [Para 22] [230-F-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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