CUSTOM SEARCH

CASE LAW ON CHILD CUSTODY IN INDIA

WHEN CUSTODY OF CHILD IS ORDERED BY FOREIGN COURT – INDIAN COURT JURISDICTION
(1998) 1 SUPREME COURT CASES 112-DHANWANTI JOSHI VS. MADGHAV UNDE, certain excerpts from it would run thus: “B.Guardians and Wards Act, 1980 S.17 Custody of child Removal of the child from one country to another country to custody order of the court from where child removed Where mother removing the child from USA to India while father obtaining an order from US Court to have custody of the child in USA, held, court in India has to take an independent decision on merits on the basis of an elaborate inquiry in regard to custody of the child having regard to the child's welfare which should be the factor of paramount importance and also the order of the foreign court as only one of the other factors for consideration If, however, the court in India thinks it fit to undertake a summary inquiry in the interest of the child, it may order return of the custody of the child to the country wherefrom he was removed Whether to conduct a summary inquiry or an elaborate inquiry has to be decided by the court having regard to the child's welfare This position prevails till India is not a signatory to the Hague Convention of 1980 on 'Civil Aspects of International Child Abduction' which requires return of the child wrongfully removed or retained in another contracting State to the country from where the child was removed Private International Law Child custody.”
ORDER OF CUSTODY IS NOT FINAL IT CAN BE MODIFIED AT ANY STAGE WITH REASONS
(1998) 1 SUPREME COURT CASES 112-DHANWANTI JOSHI VS. MADGHAV UNDE : It is no doubt true that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at an 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 interests of the child [Rosy Jacob vs. Jacob a. Chakramakkal (1973 (1) SCC 840)]. However, we may state that in respect of orders as to custody already passed in favour of the appellant the doctrine of res judicata applies and the family Court in the present proceedings cannot re-examine the facts which were formerly adjudicated between the parties on the issue of custody or are deemed to have been adjudicated. There must be proof of substantial change in the circumstances presenting anew case before the court. It must be established that the previous arrangement was not conductive to the child's welfare or that it has produced unsatisfactory results.

NOT MERELY PHYSICAL CUSTODY OF THE MINOR BUT DUE PROTECTION OF THE RIGHTS OF WARD'S HEALTH, MAINTENANCE AND EDUCATION
In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
COURT TO DECIDE WHAT WILL ENURE TO THE BENEFIT AND WELFARE OF THE CHILD
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child. ……..

CHILDREN ARE NOT MERE CHATTELS NOR ARE THEY TOYS FOR THEIR PARENTS
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 S.C.C. 42. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield 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 and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
WELFARE OF MINOR SON IS IMPORTANT EVEN THOUGH FATHER IS NATURAL GUARDIAN OF MINOR SON
In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6].
PARAMOUNT CONSIDERATION IS THE WELFARE AND INTEREST OF THE CHILD AND NOT THE RIGHTS OF THE PARENTS UNDER A STATUTE
Mausami Moitra Ganguli v. Jayant Ganguli (JT 2008 (6) SC 634) The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.
WHEN CHILDREN ARE INTELLIGENT ENOUGH TO EXPRESS THEIR PREFERENCE
In Kirtikumar Maheshanker Joshi v. Pradip Kumar Karunashanker Joshi, (1992) 3 SCC 573, custody of two minor children was sought by father as also by maternal uncle. Mother died unnatural death and the father was facing charge under Section 498-A, Indian Penal Code. Children were staying with maternal uncle. Before this Court, both the children expressed their desire to stay with maternal uncle and not with the father. Considering the facts and circumstances and bearing in mind the case pending against the father and rejecting his prayer for custody and granting custody to the maternal uncle, the Court stated; "After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage".

COURT NOT BOUND BY THE MERE LEGAL RIGHT OF THE PARENT OR GUARDIAN FOR DECIDING CHILD CUSTODY
In Kamla Devi v. State of Himachal Pradesh, AIR 1987 HP 34, the Court observed; "The Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. 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 giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other".
In Goverdhan Lal & Ors. v. Gajendra Kumar, AIR 2002 Raj 148, the High Court observed that it is true that father is a natural guardian of a minor child and therefore has a preferential right to claim custody of his son, but in the matters concerning the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.

IT IS A HUMANE PROBLEM AND IS REQUIRED TO BE SOLVED WITH HUMAN TOUCH
NIL RATAN KUNDU AND ANOTHER vs. ABHIJIT KUNDU (2008) 9 SCC 413 In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315, the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to `human touch'. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.

WELFARE OF THE MINOR CHILD IS THE PARAMOUNT CONSIDERATION AND SUCH A QUESTION CANNOT BE DECIDED MERELY BASED UPON THE RIGHTS OF THE PARTIES
Anjali Kapoor v. Rajiv Baijal, reported at (2009) 7 SCC 322, "15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law.”

PRINCIPLE OF ESTOPPEL IS NOT APPLICABLE TO ORDERS ON CHILD CUSTODY
In Rosy Jacob vs. Jacob A.J.Chakramakkal {1973 (1) SCC 840}, the Supreme Court made it clear that the principle of estoppel found in Section 115 of the Indian Evidence Act, is not applicable to orders relating to custody of minor children.

Supreme Court in JIJABAI v. PATHANKHAN 1971 AIR 315, 1971 SCR (2) 1: held that mother can act as natural guardian and the Supreme Court held as under:- "We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under section 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same."

The Supreme Court in GITHA HARIHARAN v. RESERVE BANK OF INDIA (1999) 2 SCC 228 considered the expression, 'guardian' as well as 'natural guardian' and section 6 of the Hindu Minority and Guardianship Act, 1956 and held as under (paras 7 to 10 and 16):- "7. The expression 'natural guardian is defined in section 4(c) of HMG Act as any of the guardians mentioned in section 6 (supra). The term 'guardian' is defined in section 4(b) of HMG Act as a person having the care of the person of a minor or of his property or of both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of 'guardian' and 'natural guardian' do not make any discrimination against mother and she being one of the guardians mentioned in section 6 would undoubtedly be a natural guardian as defined in section 4(c). The only provision to which exception is taken is found in section 6(a) which reads "the father, and after him, the mother" (underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the lifetime of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the lifetime of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of the welfare of the minor. 8. Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a Court of law, the word "after" in the section would have no significance, as the Court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor. The question, however, assumes importance only when the mother acts as guardian of the minor during the lifetime of the father, without the matter going to Court, and the validity of such an action is challenged on the ground that she is not the legal guardian of the minor in view of section 6(a). In the present case, the Reserve Bank of India has questioned the authority of the mother, even when she had acted with the concurrence of the father, because in its opinion she could function as a guardian only after the lifetime of the father and not during his lifetime. 9. Is that the correct way of understanding the section and does the word 'after' in the section mean only 'after the lifetime'? If this question is answered in the affirmative, the section has to be struck down as unconstitutional as it undoubtedly violates gender-equality, one of the basic principles of our Constitution. The HMG Act came into force in 1956, i.e., six years after the Constitution. Did the Parliament intend to transgress the constitutional limits or ignore the fundamental rights guaranteed by the Constitution which essentially prohibits discrimination on grounds of sex? In our opinion - No. It is well settled that if on one construction a given statute will become unconstitutional, whereas on another construction, which may be open, the statute remains within the constitutional limits, the Court will prefer the latter on the ground that the Legislature is presumed to have acted in accordance with the Constitution and courts generally lean in favour of the constitutionality of the statutory provisions. 10. We are of the view that the section 6(a) (supra) is capable of such construction as would retain it within the Constitutional limits. The word, 'after' need not necessarily mean 'after the lifetime'. In the context in which it appears in section 6(a) (supra), it means 'in the absence of', the word 'absence' therein referring to the father's absence from the care of the minor's property or person for any reason whatever. If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, or if the father is physically unable to take care of the minor either because of his staying away from the place where the mother and the minor are living or because of his physical or mental incapacity, in all such like situations, the father can be considered to be absent and the mother being a recognised natural guardian, can act validly on behalf of the minor as the guardian. Such an interpretation will be the natural outcome of harmonious construction of sections 4 and 6 of HMG Act, without causing any violence to the language of section 6(a). 16. While both the parents are duly bound to take care of the person and property of their minor child and act in the best interest of his welfare, we hold that in all situations whether the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written)and the minor is in exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother, can act as natural guardian of the minor and all her actions would be valid even during the life time of the father, who would be deemed to be 'absent' for the purpose of section 6(a) of HMG Act and section 19(b) of GW Act."

In Keshav R.Thakur and Anr. v. Suchhibai [2005 9 S.C.C. 424], at paragraph 5, it is observed as follows: 5. ...As the grandparents have by reason of interim order or otherwise remained in care and control of the minor Appellant 2 for his entire life, it will not be appropriate to grant custody of the child to the mother at this stage. Appellant 1, however, will allow the mother to meet the child whenever the respondent approaches them for the purpose.

In Sheila B.Das v. P.R. Sugasree reported in 2006 (3) SCC 62, it is held as follows: "There is no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent's company and has also been doing consistently well in school. The respondent appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. In the cases cited by the appellant, the father on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the courts keeping in view the fact that the paramount consideration in such cases was the interest and well being of the minor. The interest of the minor in this case will be best served if she remains with the respondent father but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. Accordingly, the appeal is dismissed of by retaining the order passed by the Family Court with certain modifications."

2006 (13) SCC 555 (LEKHA V. P.ANIL KUMAR), wherein it has been held as follows: “19.The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi AIR 1950 Madras 306 where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody. 20. A man in his social capacity may be reckless or eccentric in certain respects and others may even develop a considerable distaste for his company with some justification but all that is a far cry from unfitness to have the natural solace of the company of one’s own children or for the duty of bringing them up in proper manner. Needless to say the respondent husband, in this case, seems to be anxious to have the minor child with him as early as possible in order to look after him properly and to provide for his future education. The feelings being what they are between the respondent and the appellant we think it is also natural on the part of the husband to feel that if the minor child continues to live with his former wife, it may be brought up to hate the father or to have a very adverse impression about him. This certainly is not desirable. Needless to say, this Court is not called upon to find that the respondent husband has been entirely blameless in his conduct and few occasions referred to in this case and by the boy at the time of interview, it is not the duty of this Court even to ascertain whether the respondent is a responsible and good citizen and a preferred individual. Many people have shortcomings but that does not imply that they are not deserving of the solace and custody of their children.”

In Keshav R.Thakur and Anr. v. Suchhibai [2005 9 S.C.C. 424], at paragraph 5, it is observed as follows: 5. ...As the grandparents have by reason of interim order or otherwise remained in care and control of the minor Appellant 2 for his entire life, it will not be appropriate to grant custody of the child to the mother at this stage. Appellant 1, however, will allow the mother to meet the child whenever the respondent approaches them for the purpose.

In Sheila B.Das v. P.R. Sugasree reported in 2006 (3) SCC 62, it is held as follows: "There is no reason to consider the respondent ineligible to look after the minor. In fact, after having obtained custody of the minor child the respondent does not appear to have neglected the minor or to look after all her needs. The child appears to be happy in the respondent's company and has also been doing consistently well in school. The respondent appears to be financially stable and is also not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been levelled against the respondent by the appellant. Such an allegation is not borne out from the materials and is not sufficient to make the respondent ineligible to act as the guardian of the minor. In the cases cited by the appellant, the father on account of specific considerations was not considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the courts keeping in view the fact that the paramount consideration in such cases was the interest and well being of the minor. The interest of the minor in this case will be best served if she remains with the respondent father but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities. Accordingly, the appeal is dismissed of by retaining the order passed by the Family Court with certain modifications."

In Kumar V.Jahgirdar v. Chethana Ramatheertha reported in 2004 (2) SCC 688, while considering a plea whether re-marriage of the mother was detrimental to the welfare of the child, at Paragraph 11, the Supreme Court observed that, "The High Court has taken into consideration all other relevant facts and circumstances to come to the conclusion that a female child of growing age needs company more of her mother compared to the father and remarriage of the mother is not a disqualification for it."

In Mausami Moitra Ganguli v. Jayant Ganguli reported in 2008 (7) SCC 673, the appellant mother was living separately on account of cruelty of the respondent father and got an ex parte decree of divorce which attained finality. Though the Family Court gave the custody to the appellant-mother, the High Court in appeal, by the impugned order set aside the order of the Family Court and granted permanent custody of the child to the respondent father and only visitation rights were given to the mother. On appeal, at Paragraphs 19 to 23 and 26, the Apex Court held as follows: "19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. 20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

In R. Kasthuri v. R. Raveendran [A.I.R. 2003 Mad 302], in paragraphs 10 and 11, it is observed as follows: “10. It is axiomatic that the welfare of the child is of paramount consideration. The way in which the boy answered the questions shows that he is an intelligent boy and he knows his preference. He has been living with his mother for the past 12 years and his educational needs have been taken care of by his mother. There is absolutely no evidence of ill-treatment by her, but on the other hand, the boy's statement shows that his care has been taken very well by his mother and her relatives. His statement also shows that he is doing well in the class and if the boy is uprooted now and placed in the custody of the father, we are of the view that that will unsettle his educational career and his future prospects also. Though both the parents are affectionate to the child, it is clear that the child has been brought up by the mother all along from the childhood. We are of the view that if the child is taken away from the custody of the mother, it would affect his personal and educational career and we therefore hold that the custody of the child should continue to be with the mother.”

In Nil Ratan Kundu and Anr. Vs. Abhijit Kundu, [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court under Paragraph 56 observed: "A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. Thus the strict parameters governing an interim injunction do not have full play in matters of custody."

Hassan Bhatt v. Ghulam Mohamad Bhat [AIR 1961 J & K 5] which held that the words "subject to the provisions of this section" in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor.

In the case of Gaurav Nagpal v. Sumedha Nagpal, [(2009) 1 SCC 42], it was argued before the Court by the father of the minor child that the child had been in his custody for a long time and that a sudden change in custody would traumatize the child. The Court did not find favour with this argument. The Court observed that the father of the minor child who retained the custody of the child with him by flouting Court orders, even leading to institution of contempt proceedings against him, could not be allowed to take advantage of his own wrong.

Mausami Moitra Ganguli v. Jayant Ganguli, [AIR 2008 SC 2262]. The Court held: "We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him."

R.V. Srinath Prasad v. Nandamuri Jayakrishna [AIR 2001 SC 1056]. The Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grandparents, this Court held: "The Division Bench appears to have lost sight of the factual position that the time of death of their mother the children were left in custody of their paternal grand parents with whom their father is staying and the attempt of the respondent no.1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately."


WHAT ARE THE LEGAL ASPECTS TO BE TAKEN CARE FOR BEFORE FRAMING ISSUES BY COURT

IN THE ABSENCE OF PLEADINGS NO ADJUDICATION

Apex Court in the matter of State Bank of India vs. S.N.Goyal, reported in AIR 2008 SC 2594, "In the absence of appropriate pleadings on a particular issue, there can be no adjudication of such issue in a Civil suit"

ADMISSION IN PLEADING AND DOCUMENT

In Gautam Sarup v. Leela Jetly [(2008) 7 SCC 85], Court held: "14. An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore."

THING ADMITTED NEED NOT BE PROVED

Seth Ramdayal Jat vs. Laxmi Prasad, reported in AIR 2009 SC 2462, Section 58 of the Indian Evidence Act reads as under: "58 - Facts admitted need not be proved No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission." In view of the aforementioned provision, there cannot be any doubt or dispute that a thing admitted need not be proved. [See Vice-Chairman, Kendriya Vidyalaya Sangathan and Another v. Girdharilal Yadav (2004) 6 SCC 325, L.K. Verma v. HMT Ltd. and Another (2006) 2 SCC 269,Avtar Singh and Others v. Gurdial Singh and Others (2006) 12 SCC 552, Gannmani Anasuya and Others v. Parvatini Amarendra Chowdhary and Others (2007) 10 SCC 296]

NO EVIDENCE NOR ANY ARGUMENT CONTRARY TO THE PLEADINGS CAN BE LOOKED INTO

A party cannot travel outside its pleadings and no amount of evidence is tenable if not pleaded. In the absence of a clear plea no amount of evidence, led in relation thereto, can be looked into and the respondent cannot be allowed to build up a case on a non-existent plea. No party can be permitted to travel beyond its pleading and all necessary and material facts should be pleaded by the party in support of the case set up by it.
AIR 1970 SC 2025 Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas & Ors,

2003 (4) SCC 161 Bondar Singh & Ors. v. Nihal Singh & Ors.

2003 (10) SCC 653 Rajgopal v. Kishan Gopal & Anr. wherein it is held that in case of vague pleadings no lis exists between the parties on the question and the court could not go into the same even if some evidence was adduced. The petitioners in their rejoinder have expanded the scope of their present challenge to other factors. The petitioners contended that these two arguments are to be found in their pleadings and they need not argue the same. It is submitted that the point for determination is to be made with respect to only those points which have been argued. Merely raising points in the pleadings are not sufficient if the same have not been argued.

(1987) 2 SCC 555 Ram Sarup Gupta

Hon'ble Supreme Court in Muthiah M.ct. v. Controller of E.D. Madras (AIR 1986 SC 1863) that factual contentions cannot be permitted to be made for the first time through oral submissions particularly when the same is not to be found in the pleadings.

Hon'ble Supreme Court in the case of Banarsi Das and Anr. v. Kanshi Ram and Ors. (AIR 1963 SC 1165) and in S.S. Sharma v. Union Bank of India (AIR 1981 SC 588) wherein the Hon'ble Supreme Court has clearly laid down that a new plea, which were not purely one of few but a mixed question of law and fact should not have been allowed to be raised for the first time at the stage of arguments and the same is in violation of the principle of natural justice. The Petitioners in their rejoinder have stated that they have mentioned in the pleading that the said transfer have been made in violation of provision contained in Article of Association which is technical objection. The Respondents submit that the said contention of the Petitioners do not cure the defect in the pleadings. The pleadings stating that the provisions in the articles of association have been violated, without pointing out the relevant article, amounts to vague pleadings. A person says that the provisions of Companies Act, 1956 are violated, is not sufficient for a court to adjudicate unless the specific provisions is pointed out.



LACK OF DETAILS IN THE PLEADINGS CANNOT BE A GROUND TO REJECT A CASE.
2010 (2) SCC 689(Sree Swayam Prakash Ashramam & Anr. v. G. Anandavally Amma & Ors.),
AIR 2013 SC 2028 (Joseph John Peter Sandy v. Veronica Thomas Rajkumar & Anr.)
AIR 1999 SC 3325 (Hari Singh v. Kanhaiya Lal).

DESPITE ABSENCE OF SPECIFIC ISSUE WHEN THE PARTIES ARE NOT TAKEN BY SURPRISE THE ISSUE CAN BE RAISED AND DECIDED.

2010 (2) SCC 689 Sree Swayam Prakash Ashramam & Anr. v. G. Anandavally Amma & Ors.

HOW ADMISSION IS BEST PIECE OF EVIDENCE

Admission is the best piece of evidence against the persons making admission. While evidentiary admissions are not conclusive proof of the facts admitted, and may be explained or shown to be wrong, they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. (Samir Chandra Chaudhary (2005) 5 SCC 784 )

JURISDICTION OF CIVIL COURT

In Ramesh Gobindram (deceased by LRs) vs. Sugra Humayun Mirza Wakf reported in AIR 2010 SC 2897 Hon'ble Apex Court has observed in Paragraphs 5 and 6 that "the well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a Civil Court. Any such exception cannot be readily inferred by the Courts. The Court would, lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that civil Court's jurisdiction is ousted.
Hon'ble Apex Court in State of West Bengal vs. The Indian Iron and Steel Company Limited reported in AIR 1970 SC 1298 has clearly observed that even if the jurisdiction of Civil Court is excluded where the statute gives a finality to the order of special Tribunal in the matter of levy of tax, the Civil Court cam examine the cases where statutory provisions have not been complied with or statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. Hon'ble Apex Court relied upon the decision of Privy Council reported in AIR 1940 PC 105 in Secretary of State vs. Mask and Company. It has been observed therein that "it is settled law that the exclusion of jurisdiction of a Civil Court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled as observed by His Lordship that even if the jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure".

REJECTION OF PLAINT

The law with regard to Order VII Rule 11 CPC is well settled. While dealing with an application for rejection of plaint under Order VII Rule 11 CPC, the court has to consider only the averment in the plaint and not the defence of the defendant or the contents of the application under Order VII Rule 11 CPC. In C. Natrajan v. Ashim Bai reported at (2007) 14 SCC 183, the Apex Court has observed: "8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn. (2005) 7 SCC 510]"
A similar view was expressed in Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express reported in (2006) 3 SCC 100 wherein the Apex Court observed as under: "11. Under Order 7 Rule 11 of the Code, the court has jurisdiction to reject the plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within the time as fixed by the court, where insufficient court fee is paid and the additional court fee is not supplied within the period given by the court, and where the suit appears from the statement in the plaint to be barred by any law. Rejection of the plaint in exercise of the powers under Order 7 Rule 11 of the Code would be on consideration of the principles laid down by this Court.
In T. Arivandandam v. T.V. Satyapal (1977 (4) SCC 467) Court has held that if on a meaningful, not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the court should exercise its power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled.
In Roop Lal Sathi v. Nachhattar Singh Gill (1982 (3) SCC 487) Court has held that where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7 Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a plaint. Therefore, the High Court therein could not act under Order 7 Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order 6 Rule 16 to strike out the paragraphs in the absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court.
In ITC Ltd. v. Debts Recovery Appellate Tribunal (1998 (2) SCC 70) it was held that the basic question to be decided while dealing with an application filed by the defendant under Order 7 Rule 11 of the Code is to find out whether the real cause of action has been set out in the plaint or something illusory has been projected in the plaint with a view to get out of the said provision.
In Saleem Bhai and Ors. v. State of Maharashtra and Ors. (2003 (1) SCC 557) it was held with reference to Order VII Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
In Popat and Kotecha Property v. State Bank of India Staff Assn (2005) 7 SCC 510] Court has culled out the legal ambit of Rule 11 of Order 7 of the Code in these words: There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities. …………… From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7 Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff- appellants.

KARNATAKA LAND LAWS