LexTHRITY HOSHIE DOLIKUKA versus HOSHIAM SHAVAKSHA DOLIKUKA
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THRITY HOSHIE DOLIKUKA
v.
HOSHIAM SHAVAKSHA DOLIKUKA
August 4, 1982
("'~
[R.S. PATHAK AND AMARENDRA NATH SEN, JJ.J
'
Law relating to minor child-custody of the minOr daughter aged 11 .years.
whether to be with the mother- or the father Duty of the Court-Whether it is
obligatory on the part of the Court to
inter11leW the minor for ascertaining the
'minor's wishes and iMplement the same-Parsi Afarriage and Divorce Act. 1936,
Section 49; Guardians and Wards Act.1890: Sections 7 to 17.
The appelJant and the respondent belong to the Parsi community and they
were married in Bombay on the 27th December,' 1960 according to the rights and
ceremonies of the Zoroastrian religion and custom. A son was born to them on
the 6th of May, 1965 and a daughter on the 18th April, 1971, whose name is
Gospi and aged 11 years. Irreconcilable differences and embittered relationship
between the appellant and the respondent had led to the filing of Suit No. 14 of
1979. by th~ appellant mother, for judicial separation.
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B
c
D.
In the several applications made by the parents for the custody of the child,
;the learned judges of the High Court, before whom the said applications came
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' up for dispoSals interviewed the children separately and in the presenc.e of the
parents and passed appropriate ·and equitable orders, keeping in the fore front
the welfare of the minor children. The boy bas now become a major as per the
·Parsi Marriage and Divorce Act and the question of bis custody does not arise.
The custody of the minor daughter was ultimately given to the father as per the
order of the Division Bench of-the Bombay High Court dated October 16, 1981.
Hence the appeal by the appellant ~other, after obtaining Special lea"ve of the
F
Court.
AJJowing the appea'!, the Court.
HELD : I. It is well settled t_hat any matter concerning a minor, has to be
Considered and decided only from the point of view of the welfare and interest
of the minor, the Court has a "Special responsibility and it is the duty of the
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Court to consider"the welf~re of the minor and to protect thC minor's interest.
In considering the question of custody of a minor, the Court has t6 be guided
'by the only consideration of the welfare of the minor. (79 B·D]
Rosi JactJb v. Jacob A. Chakrammakkal [1973] 3 S.C.R. 918 followed.
7:1 There is no duty or obligation cast on the part of the CoUrt to interview
the minor for ascertaining the wishes of the minor befor~ ~~~i
1~ing th~ ~~~t}~r;\
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SUPREME COURT REPORTS
(!983J 1 s.c.n
A
of tbe child custody under section 49 of the Par~i M;arriage .and Divcirce Act.
1936. [81 F-GJ
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c
D
F ·,
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2:2 It is true that Section 17(3) of the Guardians and Wards Act, 1890
speaks of the consideration by the court of the preference of the child "if the
minor is old·enough to form an intelligent preference". The instant case, is not
one under the Guardian of Wards Act 1890. [83 B-C]
2:3 J:Iowever, there·cannot be any ·manner of doubt as the Court's power
of entertaining any minor for ascertainii:ig the wishes of the minor, if the Court
consider it so necessary for its own satisfaction in dealing with the question
relating. to the custody of the minor. [83 DJ
In the facts and circumstances of the case,' the minor is not fit to form an
intelligent preference which may be taken into consideration in deciding her
welfare. The report of the Social Welfare Expert records that the interviews,
tho minor girl faced before the several judges cast a gloom on the sensitive mind
of the 'tender girl and caused a lot of strain and depression on her. Torn between
her love for both her parents and the acrimonious dispute between them resulting
in the minor being dragged frOrn court to court is bound to have effected the
sensitive mind of the minor girl. Though the girl is quite bright and intelligent
as recorded by the l~arned judges of the Bombay High Court iB their orders after
their interviews with the girl who is of a tender age and is placed in a very delicate
and embarassing situation because of the unfortunate relationship and litigation
between her parents for both of whOm she has great deal of affection~ she is not
in a- position to express any intelligent preference which will be conducive to her
interest and welfare. Mature thinking is indeed necessary in such a situation to
decide as to what will ensure to her benefit and welfare .. Any child who is placed
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