SHEOLI HATI versus SOMNATH DAS

Citation: [2019] 9 S.C.R. 212 · Decided: 11-07-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 9 S.C.R.
SHEOLI HATI
v.
SOMNATH DAS
(Civil Appeal Nos. 5388-5389 of 2019)
JULY 11, 2019
  [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
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
[2019]  9 S.C.R. 212
           212
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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
SHEOLI HATI   v.  SOMNATH DAS
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
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 init

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