PURVI MUKESH GADA versus MUKESH POPATLAL GADA & ANR.

Citation: [2017] 8 S.C.R. 630 · Decided: 04-09-2017 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2017) 8 S.C.R. 630 
PURVI MUKESH GADA 
v. 
MUKESH POPATLAL GADA & ANR. 
(Criminal Appeal No. 1553 of2017) 
SEPTEMBER 04, 2017 
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.j 
Child and Family welfare - Custody of children - Son 17 
years old and daughter 13 years old - Children found to be 
C comfortable in company of mother and expressed their desire to 
stay with mother - Children are at discernible age of 17 and 13 
years and are better equipped mentally as well as psychologically 
to take a decision in this behalf - Moreover. when they were in 
custody of father. they were admitted in Boarding school and were 
not performing well in studies - After the children started staying 
D with mother. their academic performance improved significantly -
Therefore, welfare of children lies in allowing mother to retain their 
custody - Custody given to the mother - Children having not shown 
reluctance to meet father. he is given weekend access and avail the 
custody of children during vacations and festivals. 
E 
Allowing the appeal, the Court 
HELD: 1. The matter is not dealt with by the High Court in 
right perspective. It is not in dispute is that son had failed in his 
Grade IX examinations and he was to reappear for the same. It 
is also a fact that it is the guidance and tuition of the appellant 
F that the son passed the examinations on reappearance and could 
be promoted to Grade X. Another fact is that when the appellant 
left the matrimonial home, the son was not residing with the 
parties. He was admitted in a ..,.,_,ding school in Coimbatore, a 
far-away place from Pune. No doubt, the respondent claims that 
intention in admitting the son in a boarding school in Coimbatore 
G was that he should get best education as the school in which he 
was admitted is a prestigious educational institution. At the same 
time, it is also a fact that the son was not in the physical company 
of his father on day-to-day basis. It is also a harsh reality that he 
was not doing well in studies during the period his legal custody 
H was mtrusted to the respondent. His overall performance in 
630 
PURVI MUKESH GADA v. MUKESH POPATLAL 
631 
GADA&ANR. 
most of the subjects was dismal and he had even failed _in Grade A 
IX. At that stage when, within few days, there was a re-
examination, handing over the son, along with the daughter, to 
the appellant, without even any court order, lends credence to 
the version of the appellant that the purpose was to give 
appropriate tuition to the son by the appellant so that his academic 
B 
year is not wasted. Another fact emphasised at this stage is that 
though the custody of the daughter was also with the respondent 
and request of the appellant to hand over interim custody of the 
children did not prevail with the Additional ACMM who rejected 
this request, even the daughter was admitted in a boarding school 
by the respondent thereafter. This fact also gives· some credence C 
to the version of the appellant that because of his pre-occupation 
in the business or otherwise, the respondent was not in a position 
to take personal care of the children and, therefore,_ he put both 
of the children in the boarding schools. [Paras 12 and 131 [638-E-
G-H; 639-A-D] 
D 
2. After the children came to the appellant, they were 
~­
admitted in a school in Mumbai. The son's academic performance 
has improved significantly. He is getting very high grades in the 
examinations. In fact, academic performance of the daughter has 
also gone up. This factor, though noted by the High Court, has 
been lightly brushed aside with the observations that if the E 
children were not doing well earlier, blame cannot be put on the 
respondent as it could be the result of disputes between the 
parents. In the process what is ignored is that in spite of the said 
dispute still subsisting, the academic performance of the children, . 
while in the custody of their mother, has gone up tremendously. 
F 
[Para 141 [639-E-GJ 
3. When the special leave petition had come up for hearing, 
-on the first day itself the respondent had appeared through his 
counsel as a caveator. Children were also brought to the Court 
and this Court interacted with them. While issuing the notice, 
G 
based on the interaction with the children, who desired to remain 
with their mother, directions contained in the impugned judgment 
were stayed. At the same time, the respondent was given access 
to these children as well as visitation rights. During the perio

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