LexMAUSAMI MOITRA GANGULI versus JAYANT GANGULI
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[2008] 8 S.C.R. 260 _,,.. ' A MAUSAMI MOITRA GANGULI V. JAYANT GANGULI (Civil Appeal No.3500 Of 2008) B MAY 12, 2008 [C.K. THAKKER AND D.K. JAIN, JJ.] + . Guardians and Wards Act, 1890 - ss.10, 17 and 25 - Hindu Minority and Guardianship Act, 1956 - s.13 - Custody c of male child - Parents divorced - Mother left matrimonial home leaving the child, 3 year old at that time, with father - Child now 10 years old - To which parent, the care and control of the child should be committed - Held: The first and the paramount consideration is welfare and interest of the child D and not rights of the parents under a statute - Stability and .... _ security of the child is alsc an essential ingredient for full de- velopment of child's talent and personality.* Appellant left her matrimonial home at Allahabad leav- E ing her three year old son with her husband, Respondent. Subsequently she filed a suit for divorce against Respon- dent which was decreed. Since no appeal was filed by Respondent against the said decree, it attained finality. Thereafter, Appellant moved a petition under ss.10 and .... F 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court. The application was allowed and Appellant was declared as the lawful guardian of the G minor child. Respondent filed appeal before the High Court which set aside the order passed by the Family Court and granted custody of the child to Respondent. Hence the present appeal. Dismissing the appeal, the Court H 260 MAUSAMI MOITRA GANGULI v. 261 ~ _.._ JAYANT GANGULI HELD: 1. It is trite that while determining the ques- A tion as to which parent the care and control of a child . should be committed, the first and the paramount con- sideration 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 con- B • + tained in either the Guardians and Wards Act, 1890 (s.17) or the Hindu Minority and Guardianship Act, 1956 (s.13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ig- c nore, 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 D 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 mem- ber and head of the family, yet in each case the Court has E to see primarily to the welfare of the child in determining the question of his or her custody. Better financial re- • sources of either of the parents or their love for the child t may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It F 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. [Para G _, 14] [269-A-G] Rosy Jacob v Jacob A. Chakramakkal (1973) 1 SCC 840 - referred to. H 262 SUPREME COURT REPORTS [2008] 8 S.C.R. A Halsbury's Laws of England, Fourth Edition Vol.13 - re- ferred to. 2.1 In the present case there is nothing on record to suggest that the welfare of the child is in any way in peril B in the hands of the father. The stability and security of the child is also an essential ingredient for a full development -t • of child's talent and personality. [Para 17) [270-G, 271-A] 2.2 Having interviewed the child in the chambers for C some time, this Court finds it difficult to accept the stand of the appellant that the father does not have sufficient time or resources to look after the welfare of the child. The dis- location of the child, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would o not only impede his schooling, it may also cause emotional strain and depression on him. [Para 17) [271-C,D] 2.3 Significantly, during course of hearing on one of the dates, when this Court had not yet interviewed the E chi
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