Tuesday, June 11, 2013

Hope husbands use this decision by Madras HC : *decision of child to go with one parent canNOT solely decide custody* - GEM from Madras HC, Overarching principle "...wishes of a child of any age may be considered under all circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children..."



Notes
*******************
  • Husband , wife, son, daughter
  • Relations break down
  • Wife tries divorce alleging cruelty . Does not win. 
  • Wife Then agrees with hubby (ok first hubby) for mutual consent divorce
  • they also agree no maintenance + Son to go with dad, daughter to go with mother (wife as above)
  • Wife immediately re marries 
  • Wife takes son back from (first) husband and moves to New Zeland with second hubby
  • There are allegations that second hubby already has another marriage, has NOT divorced that wife etc. but those facts are not germane and not considered here 
  • Wife has another daughter with second husband
  • Wife comes back to India, but has huge altercations with her father (not connected to first hubby) which is reported in the press etc
  • The minor son (born out of first wedlock) is an unfortunate victim and witness to the fights
  • Unable to maintain the kids, the wife hands over the son to the first husband
  • Ever since the kid goes back to the father, the kid refuses to go back to the mother !!
  • Both husband and wife fight series of cases in various courts 
  • Matter reaches MADRAS HC
  • Madras HC repeatedly stresses that the kid needs both parents
  • The son repeatedly refuses to go back to the mother !!
  • Mother says father has tutored kid to become violent and so the kid should be psychologically assessed 
  • Madras HC sends the kid for psychological assessments and the psychologists claim that that the mother is authoritative but the father is permissive !
  • The HC says "......43. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court..."
  • Madras HC says we have moved from the rights to child custody to an era of responsibilities 
  • Honourable Madras HC forces the father to take the kid to the mother !!



thoughts
*******************
  • if you are a reasonable kid and DO NOT WANT TO GO TO A STEP FATHER can the court force you ?
  • Oh my god ...and the matter suddenly changes when you cross 18 ??
  • Will the same rule be applied in all other cases ? in cases where the kid wants to go with mother ? will the kid be forced to go with the father ?






IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21-03-2011

CORAM:

THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN

A.No.248 of 2011
in
O.P.No.12 of 2011


Mr.S.Anand @ Akash .. Applicant/Petitioner

vs.

1.Ms.Vanitha Vijaya Kumar
2.Mr.Anand Rajan
.. Respondents/Respondents

For Applicant           :   Mr.R.Krishnamoorthy, SC 
    for M.K.Hidayathullah

For Respondents :     Mr.T.Surendran

O R D E R

In an Article published in "The Matrimonial Strategist" (October 2003) titled "Children as Pawns:Who Determines Custody?", by Lawrence Jay Braunstein, the author states as follows:-

"The division of assets in a divorce is a process rife with potential conflict, which varies according to the value of the assets and relative worth of the parties. More painful and much more difficult, however, is the determination of custody. Children are not assets to be divided. Their lives, already affected by the divorce, will be further impacted by the custody situation. Attorneys and Courts struggle with ways to determine which parent would be the better primary caretaker. If only there were a test ... Because there is not such a determining factor, the legal system has come up with many tests  and people to evaluate them. Rather than simplify the decision, this process may have further complicated it. In addition to the questions of objectivity raised about the tests themselves, there are the questions raised about the individuals who evaluate them."

It is true of every child custody case and the case on hand is no exception.

2. Pending the main original petition O.P.No.12 of 2011, filed under Sections 7 and 25 of the Guardians and Wards Act, 1890, in respect of two minor children, a boy (hereinafter referred to as 'V') and a girl (hereinafter referred to as 'J'), the petitioner-father seeks an interim protection order in A.No.248 of 2011, so as to enable him to retain the custody of their minor son. 

3. I have heard Mr.R.Krishnamoorthy, learned Senior Counsel for the applicant and Mr.T.Surendran, learned counsel for the respondents.

4. The petitioner is the biological father of the minor children 'V' and 'J'. The first respondent is their biological mother. The marriage between the petitioner and the first respondent was solemnised on 10.9.2000, as per Hindu rites. The minor son was born on 23.5.2001 and the minor daughter was born on 18.8.2005. 

5. The first respondent filed a petition for divorce in HMOP No. 2669 of 2005, on the file of the II Additional Family Court, Chennai, alleging cruelty against the petitioner herein. However, the said petition was later dismissed as not pressed and both parties filed FCOP No.3027 of 2006 for the dissolution of their marriage by mutual consent. A decree of divorce by mutual consent was passed on 9.6.2007. It was recorded in the  order passed by the Family Court, while granting a decree of divorce that the petitioner herein (father) shall have the custody of the minor son 'V' and that the first respondent herein (mother) will have the custody of the daughter 'J'. It was also recorded in the order of the Family Court that the petitioner herein will have visitation rights upon his daughter and that the first respondent herein would have visitation rights upon her son.

6. Immediately after the grant of divorce by mutual consent, the first respondent married the second respondent on 12.12.2007. Out of the said wedlock, a girl baby was born to the first respondent on 25.5.2009. The guardianship and custody of the said baby is not in dispute. 

7. In the year 2008, disputes arose between the petitioner and the first respondent herein over the custody of the minor son 'V'. It appears that the first respondent took away the custody of the child, forcing the petitioner herein to file HCP No.730 of 2008. But the said HCP was closed on 11.6.2008 after the custody of the minor son was restored to the petitioner herein.

8. Thereafter, the first respondent filed FCOP No.193 of 2008 on the file of the Family Court at Secunderabad, under Section 25 of the Guardians and Wards Act, 1890, seeking permanent custody of the minor son. When the said petition came up for hearing, the petitioner herein appears to have sent a letter as well as a memo to the Family Court. The petitioner herein had stated in the memo that he is agreeable to the first respondent having the custody of the minor son. He also assured the first respondent that he was authorising her absolutely to be the guardian of the child and that there would be no future interferences. An affidavit was also filed by the petitioner herein, to the same effect. Based on the letter, memo and affidavit, the Family Court, Secunderabad, allowed FCOP No.193 of 2008 by an order dated 25.6.2008, granting custody of the minor son to the first respondent herein.

9. According to the first respondent herself (as per the averments she made in para 10 of the affidavit in support of HCP No.2300 of 2010), certain untoward incidents took place in her parental home, which affected the children adversely. Thereafter, according to the first respondent, the petitioner abducted the minor son on 3.12.2010, forcing her to file HCP No.2300 of 2010 on the file of this Court, seeking the issue of a Writ of Habeas Corpus. 

10. While it appears that the first respondent filed the Habeas Corpus petition on the file of this Court on 9.12.2010, the petitioner moved a suit simultaneously, on 10.12.2010 in O.S.No.223 of 2010 on the file of the Family Court, Chennai, seeking a decree of permanent injunction, restraining the first respondent herein from interfering with his custody of the minor son. Pending suit, the petitioner also sought an interim order of protection in I.A.No.2987 of 2010. But the Family Court merely ordered notice in the said application on 11.12.2010.

11. It was claimed by the first respondent herein in the Habeas Corpus petition that the petitioner abducted the son on 3.12.2010. On the contrary, it was claimed by the petitioner herein in his suit that due to the incidents that took place between the first respondent and her father, traumatising the children, she herself voluntarily surrendered the custody of the child to the petitioner on 7.11.2010.

12. During the pendency of the Habeas Corpus petition, the petitioner filed two applications, before the Family Court at Secunderabad, in I.A.SR.Nos.6084 and 6085 of 2010, praying for (i) setting aside the final order passed on 25.6.2008 in FCOP No.193 of 2008 and restoring the custody of the minor son to him and (ii) permitting him to engage a counsel. These applications were filed on 22.12.2010. 

13. But on 23.12.2010, the Division Bench allowed the Habeas Corpus petition, directing the petitioner to hand over the minor child to the first respondent, within 2 weeks. However, the Division Bench made it clear that it was open to the petitioner to work out his remedies before the appropriate Forum in accordance with law and that till the order of the Family Court, Secunderabad is varied by a competent Court vesting the custody of the minor with the applicant herein once again, he cannot claim custody. 

14. As stated in para 11 above, the applicant had filed two applications before the Family Court at Secunderabad on 22.12.2010, just one day before the Habeas Corpus was disposed of by the Division Bench. But the Family Court, Secunderabad returned the applications for presentation before appropriate Court, on the ground that neither the parents nor the minor child was residing within the jurisdiction of the Secunderabad Court, so as to enable the said Court to continue to have jurisdiction in terms of Section 9 of the Guardians and Wards Act, 1890. The Secunderabad Court also took note of the pendency of the suit filed by the petitioner in O.S.No.223 of 2010 on the file of the I Additional Family Court, Chennai, to come to the conclusion that the petitions filed by the petitioner should be returned for presentation to the proper Court.

15. Therefore, left with no alternative, the applicant-father has come up with the above original petition under Sections 7 and 25 of the Guardians and Wards Act, 1890, contending inter alia (i) that in child custody matters, an  order of a competent Court could always be modified, on the ground of change of circumstances; (ii) that it is only in recognition of the said principle of law that the Division Bench left it open to the applicant to work out his remedies before the appropriate Forum in accordance with law; and (iii) that in view of the change of circumstances, especially after November 2010, the applicant has become entitled to permanent custody of the minor son 'V'.

16. Along with the main original petition filed under Sections 7 and 25 of the Guardians and Wards Act, 1890, the applicant-father has come up with the above application A.No.248 of 2011, seeking an interim protection in respect of the custody of the minor son. This application has been necessitated in view of the order of the Division Bench, directing the applicant to hand over the custody of the boy. The apprehension of the applicant is that unless an interim protection is obtained, he may be exposed to the consequences of (i) disobedience of the order of the Division Bench and (ii) losing the custody of the child.

17. Apart from raising contentions on the merits of the case, the respondents are opposing the above application as well as the main original petition on the following preliminary grounds viz.,:-

(i) that in view of the order of the Family Court, Secunderabad, the above petition is barred by estoppel; and

(ii) that this Court cannot go beyond the order of the Division Bench in the Habeas Corpus petition, especially after the applicant filed a Special Leave Petition before the Hon'ble Supreme Court and withdrew the same, after finding that the Apex Court was not willing to entertain the petition;

Therefore, it is necessary to deal with them, before going into the merits of the dispute.

18. The first ground of objection viz., that the above original petition is barred by estoppel, is wholly untenable for the following reasons:-

(i) If the action of the applicant in reaching a settlement before the Family Court at Secunderabad, allowing the first respondent to have the custody of the minor son would amount to a total surrender of his custody rights and guardianship and would operate as estoppel, the first respondent herself was barred by the very same principle, when she went before the Family Court at Secunderabad. In the petition for divorce by mutual consent filed by the applicant and the first respondent before the Family Court at Chennai in FCOP No.3027 of 2006, the first respondent-mother allowed the custody of the minor son to be with the applicant-father and retained only the custody of the minor daughter with herself. Therefore, if principles of estoppel would apply, it would apply equally against her, since she could not have gone to the Family Court, Secunderabad in the year 2008, contrary to the order of the Family Court at Chennai. 

(ii) As a matter of fact, before the Family Court at Chennai, the parties reached a compromise covering 3 aspects of their lives viz., (a) that their marriage should be dissolved by a decree of divorce; (b) that both will have no claim against each other for maintenance and (c) that while the father will have custody of the minor son, the mother will have the custody of the minor daughter. After the decree of divorce granted by the Family Court at Chennai on 9.6.2007, on the basis of the said compromise, the first respondent got married to the second respondent on 12.12.2007, but the applicant is yet to be married. She has also retained the custody of the minor daughter. After taking advantage of the consent order passed by the Family Court at Chennai, both by getting remarried and by retaining the custody of the minor daughter, it was the first respondent who broke that consent order by forcibly taking away the minor son. This action on the part of the first respondent-mother forced the applicant-father to move an earlier petition in HCP No.730 of 2008. This Habeas Corpus petition was closed on 11.6.2008 after the first respondent-mother handed over the custody of the son to the applicant-father. Thereafter, the first respondent went to the Family Court at Secunderabad and filed FCOP No.193 of 2008. 

(iii) Thus the earliest consent order passed by Family Court at Chennai, on 9.6.2007 in FCOP No.3027 of 2006 was disobeyed and thrown to the winds first by the first respondent. After the applicant initiated Habeas Corpus proceedings in HCP No.730 of 2008, she surrendered the custody to the applicant in June 2008 and immediately went before the Family Court at Secunderabad. Therefore, if the first respondent is not barred by the principle of estoppel at that time (a) when she violated the order of the Family Court, Chennai and (b) when she moved the Family Court, Secunderabad for a variation of the order of the Chennai Family Court, I do not know how she can now plead estoppel against the applicant. What is sauce for the goose, shall be sauce for the gander too

(iv) As a matter of fact, in Roy Estate vs. State of Jharkant {2009 (12) SCC 194}, when a plea of estoppel was raised by the appellant and the Court found that the appellant had been equally guilty of a similar stand, the Apex Court held that that aspect was not required to be gone into. Moreover, as held by the Supreme Court in Indira Bai vs. Nand Kishore {1990 (4) SCC 668}, estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in the administration of justice. Estoppel is primarily a rule of equity. Therefore, he/she who seeks equity, should do equity. The first respondent, who herself was guilty of going back on the order of the Family Court, Chennai, cannot now set up the equitable plea of estoppel.

(v) In any event, the plea of estoppel is not available in relation to child custody cases. This is due to the fact that the Court is not primarily concerned in such cases with the rights of the parents. The Court is concerned only with the rights of the child. When the only test applicable in such cases is the interest and welfare of the child, it is needless to point out that the parameters on which the test has to be applied, would keep changing from time to time. This is why, the Courts have always considered that estoppel would arise only upon a representation of an existing fact. Vivian Bose, J., pointed out in Dhiyan Singh vs. Jugal Kishore {1952 SC 145} that before an estoppel can arise, there must be first a representation of an existing fact as distinct from a mere promise de futuro. 

(vi) 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.

(vii) Again in Dhanwanti Joshi vs. Madhav Unde {1998 (1) SCC 112}, the Supreme Court pointed out that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any 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 interest of the child.

Therefore, the first objection that the present OP is barred by estoppel is rejected as untenable.

19. The second ground of objection viz., that the applicant cannot go beyond the order of the Division Bench, is equally untenable. In para 24 of its order the Division Bench issued a direction, which reads as follows:-

| "24. So long as the order dated 25.6.2008 passed in
| FCOP No.193 of 2008 by the Family Court, Secunderabad
| is in force, the third respondent cannot claim the
| custody of his son Master Vijay Sri Hari and cannot
| take him away contrary to the wishes of the first
| petitioner. Unless and until the order is varied by a
| competent Court vesting again the custody of the minor
| child to the third respondent, the third respondent
| cannot claim the custody of the minor child. It is for
| the third respondent to work out his remedies before
| appropriate Forum in accordance with law. We make it
| clear that nothing stated in this order shall be taken
| as a binding precedent or a guiding factor by the
| Courts below while deciding suit in O.S.No.223 of 2010
| pending before the Family Court, Chennai."

20. Therefore, the order of the Division Bench was not final and conclusive. The Division Bench itself was conscious of the same and hence it was recorded therein that the applicant cannot claim custody of the minor child till the order of the Family Court, Secunderabad was varied by a competent Court. The Division Bench left it open to the applicant to work out his remedies before the appropriate Forum and the Division Bench was cautious enough to say that nothing stated in their order would be taken as a binding precedent or guiding factor by the Courts dealing with the custody issue. Therefore, the second ground of objection is also untenable.

21. Once the preliminary grounds of objection raised by the respondents are overruled, the question that arises next for consideration is as to whether the applicant is entitled to any relief and as to whether any interim arrangement pending a decision in the main OP, should be made.

22. Before getting into those two questions, I must also record here that after the order of the Family Court, Secunderabad dated 25.6.2008, there has been a change of circumstances, entitling the applicant to seek a modification of the consent order passed by the Family Court, Secunderabad. The change of circumstances are:-

(i) At the time when the consent order was passed by the Family Court, Secunderabad, the respondents had already made arrangements to shift their family to New Zealand. This is borne out even by the order of the Family Court, Secunderabad, which refers to the letter dated 25.6.2008 addressed to the Consulate General of New Zealand at Delhi. But after 2 years, the respondents again re-located their family in India. Therefore, it is possible that the applicant, who allowed the minor son to go with the mother to a developed country for better educational prospects, reconsidered his decision, after the respondents re-located themselves.

(ii) Moreover, the consent divorce between the applicant and the first respondent took place on 9.6.2007; the first respondent remarried on 12.12.2007; the custody of the minor son was handed over by the applicant to the first respondent on 25.6.2008; the respondents moved to New Zealand later; and out of the wedlock between the first respondent and second respondent, a girl baby was born subsequently. In other words, the first respondent now has a girl baby born out of the second marriage. 

(iii) More than anything else, after the respondents shifted back to India in May 2010, the relationship between the first respondent and her parents got strained, leading to the first respondent filing police complaints against her own parents and her parents filing police complaints against the second respondent. It is on record that from 7.11.2010 till December 2010, the minor son became a victim of as well as a witness to, the ugly tussle between the first respondent and her parents. Therefore, any right thinking individual would try to save his minor child out of such an imbroglio. Even according to the first respondent's police complaint, she entrusted the child to the applicant on 7.11.2010, at least for a temporary period, because of the trauma that the entire family underwent due to unprecedented and ugly disputes between the first respondent and her father. 

23. Therefore, there are sufficient change of circumstances, justifying the action of the applicant in seeking a modification of the order of the Family Court, Secunderabad. The attempt made by the applicant to have the order of the Family Court, Secunderabad, changed by the very same Court, failed in view of the fact that the child has moved out of the jurisdiction of that Court. Today, the applicant is within the jurisdiction of this Court; the respondents are within the jurisdiction of this Court; and the minor child is also within the jurisdiction of this Court. Therefore, this Court has jurisdiction to entertain the above original petition. Moreover, in view of Section 3 of the Guardians and Wards Act, 1890, the jurisdiction of this Court under Clause 17 of the Letters Patent is saved. Therefore, the remedy of seeking a modification of the order of the Family Court, Secunderabad, lies only before this Court, especially after the refusal of the Family Court, Secunderabad to entertain any application on the ground of jurisdiction. 

24. Having found that there are sufficient justifications for the applicant to seek a variation of the order of the Family Court, Secunderabad, let me move on to the merits of the case for testing the question of interest and welfare of the child.

25. According to the applicant, his father was an Assistant Executive Engineer in the Tamil Nadu Electricity Board. He died in harness in 1992 at the age of 52 years. The applicant is living with his mother, who is said to be 55 years of age and is receiving a monthly pension of Rs.12,000/-. The applicant has a sister working in Tata Consultancy Services and her husband is employed in the State Government. They have children aged 12 years and 9 years respectively and they are residing in the same street where the applicant resides. The applicant claims to be the Managing Director of a Company by name SAFEW Solution Pvt. Ltd., which had promoted residential villas under the name and style of Green Castle.  

26. In contrast, the respondents have claimed that they provided an excellent family atmosphere for the son at New Zealand and that the first respondent attended several parenting workshops organised by North Shore City Council at Auckland, in order to provide a normal home environment and happy childhood to the children. According to the respondents, the second respondent also personally encouraged the child to participate in various sports activities, academic development programmes, swimming, horse riding, beach surfing etc. After returning to India, the respondents admitted the minor son first in Chennai Public School and later in Don Bosco Matriculation School, Egmore. Therefore, the respondents contend that they provide a better environment to the child. 

27. It may be seen that in the preceding two paragraphs, I was careful enough, only to record the positive aspects of the respective claims made by the parties. It does not mean that there are no negative aspects. Both parties have traded allegations against each other, which if proved, would show both of them in poor light. Therefore, I have avoided making a mention of the same, so that those allegations can be dealt with, at the time of the trial in the main OP.

28. There is one strong reason as to why I have avoided dealing with the bad and ugly allegations made by the parties against each other. The minor child was admittedly in the custody of the respondents from June 2008 at least till November 2010. According to the applicant, the custody was handed over to him by the first respondent voluntarily on 7.11.2010. But according to the respondents, the child was permitted to be with the applicant for a brief period from 7.11.2010, on account of the litigation into which the respondents plunged, with the father of the first respondent. Irrespective of whose version contains the whole truth, there are two underlying inferences that would flow out of these two versions. They are:-

(i) During the period from June 2008 to May 2010 when the child was in New Zealand with the respondents and during the period from May 2010 till November 2010 when the child was in India with the respondents, the applicant never made any complaint before any Forum that the respondents became disentitled or disqualified to have the custody of the child. Therefore, I cannot accept that the respondents have become bad elements all of a sudden after November 2010, so as to be deprived of the custody of the child that they had for more than 2-1/2 years, without any protest from the applicant. Incidentally, it was argued on behalf of the applicant that the second respondent was already married and became a father of 3 children and that without getting his first marriage dissolved, he married the first respondent. Unfortunately, this allegation is also not denied specifically by the respondents in their counter affidavit. But even if this allegation is true, it may invalidate the marriage between the respondents 1 and 2, but may not disqualify the first respondent from seeking custody of the child. It is relevant to point out that admittedly, the first respondent married the second respondent on 12.12.2007. It is only thereafter that the applicant agreed on 25.6.2008 before the Family Court at Secunderabad that the respondents could have permanent custody of the minor son. From December 2007 till November/December 2010, the applicant did not raise this issue regarding the second respondent's first marriage. It is not his plea that the applicant came to know about this fact only now. Therefore, it is clear that the applicant conceded permanent custody of the minor son to the respondents, despite his knowledge of the above fact.

(ii) Similarly, I cannot accept the allegations made by the respondents about the personality and character of the applicant, since the first respondent herself was comfortable in surrendering the custody of the minor son to the applicant, on 9.6.2007 when a decree of divorce was passed by consent by the Family Court, Chennai. The minor son was aged 6 years at that time. The first respondent would not have handed over permanent custody of the minor son to the applicant on 9.6.2007, when the child was just 6 years old, if the applicant was a person of undesirable character. At any rate, even according to the first respondent, the applicant came to her rescue on 7.11.2010 when she had a quarrel with her father, on account of which the first respondent herself requested the applicant to keep the child for sometime. If the applicant is of such a bad character, the first respondent would not have entrusted (even if not surrendered) the custody of the minor son to the applicant.

29. Therefore, for the purpose of the interim application, I wish to proceed on the basis that both parties are not disqualified from having the custody of the minor child. Though both parties have painted each other with a brush, broomed out of animosity, I prefer to ignore them for the present, in view of the fact that a person who is a bad child to his/her parents, a bad partner to his/her spouse or a bad samaritan to his/her neighbours, could still be a good parent. Similarly, a person who is too good to his/her parents, his/her spouse and his/her neighbours, may prove to be a bad parent. Therefore, for the purpose of deciding this interlocutory application, I have to take it that both parties have not suffered any serious disqualification, to have the custody of the child. This is borne out by the very conduct of both parties from June 2007 till November/December 2010, during which period, the child had shared its quality time with the applicant as well as the first respondent without any issues.

30. If both parties are not disqualified from having the custody of the child, then it is their duty, under normal circumstances, to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment. The United Nations Convention on the Rights of the Child, which entered into force on 2.9.1990 stipulates under Article 9.3  that "States Parties shall respect the right of the child, who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis except if it is contrary to the child's best interest". Article 18.1 of the Convention states as follows : 

| "States Parties shall use their best efforts to
| ensure recognition of the principle that both parents
| have common responsibilities for the upbringing and
| development of the child. The parents or as the case
| may be legal guardians, have primary responsibility
| for the upbringing and development of the child. The
| best interest of the child will be their basic
| concern." 

Therefore, in an ideal situation, the parents themselves should come forward to draw up "parenting schedules" so that both the parents share the responsibilities for bringing up the child. But in cases where they themselves are not matured enough to reach an understanding and draw up a parenting schedule, it becomes the duty of the Court to do so, keeping in mind, the interest and welfare of the child.

31. It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child. After the advent of the Children Act, 1989 in U.K., the old terminology of "custody", "guardianship" and "custodianship orders", have gone {see Cheshire and North's Private International Law-Thirteenth Edition-Lexis Nexis Butterworths Publication (page 857)}. Instead, Section 8 of the Act, uses the terms "residence" and "contact" (or access). Taking the law from the rights regime to the responsibilities regime, the Hague Conference concluded a Convention in 1996 known as "Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility for the Protection of Children". The provisions of this Convention lay emphasis on parental responsibility and it requires that the child should be treated as an individual and not simply as an appendage of its parents. 

32. Therefore, I wish to fix responsibility on both the parents, as an interim measure, in view of the fact that the homes of the applicant as well as the respondents provide different sets of advantages (as well as disadvantages) to the child. While the home of the applicant provides the advantage of an affectionate father focussing on a single child, with a devoted grandmother, the home of the respondents provides the advantage of an affectionate mother with two younger siblings of the minor child, available for him to share love, affection and the hard realities of life. 

33. But unfortunately, right from the beginning, it was contended by the applicant that the child, who is now aged more than 9 years, is refusing to go with the respondents. According to the applicant, the child is intelligent enough to make a preference and that due to an aversion that the child had developed towards the second respondent (step father), it is refusing to go with the respondents. 

34. In order to test the veracity of the above contention, I passed an order in the first instance on 21.1.2011, directing the applicant to hand over the custody of the child to the first respondent on 23.1.2011 at 11.00 A.M., in the office of the learned Senior Counsel who appeared at that time for the respondents, with a further direction to produce the child in my Chamber on the next date of hearing viz., 28.1.2011 at 4.30 P.M. I thought that the respondents could have interim custody of the child from 23.1.2011 to 28.1.2011. 

35. However, on 24.1.2011 itself, the learned counsel for the applicant made a mention that the child refused to go with the mother. Therefore, both parties were directed to be present at 4.00 P.M., along with the child. I talked to the child for sometime and I found that the child was stubborn. But the applicant himself offered to take the boy after school hours (1.45 P.M.) on 25.1.2011 and leave the child at the residence of the respondents somehow or the other. 

36. But unfortunately, it was reported later, both in the media as well as by the parties, that in the afternoon of 25.1.2011, when the applicant attempted to leave the boy at the residence of the respondents, the boy refused to come out of the car, leading to a lot of commotion. 

37. Therefore, on 31.1.2011, I passed an order, directing the applicant to bring the child on the next day viz., 1.2.2011 at 2.30 P.M., and leave him in the exclusive custody of the first respondent-mother, in the Court Hall of the learned Master of this Court, situate behind the Court Hall in which I am holding sittings. Accordingly, the applicant brought the child on 1.2.2011 at 2.15 P.M. The first respondent went to the Court Hall of the learned Master along with her two younger daughters and waited there, when the applicant took the child and left him with the first respondent. After the applicant came out, there was lot of commotion, which actually disabled me from proceeding with the hearing of the other cases.

38. Within a few minutes, the first respondent as well as the minor son came back to the Court Hall and it was represented by the first respondent that the applicant had poisoned the mind of the child to such an extent that the child was actually turning violent. Therefore, the first respondent herself requested me to have a Psychiatric assessment of the child.

39. Though the request of the first respondent actually put me in a predicament, I acceded to her request, in view of the fact that today in all child custody cases, the same problem is cropping up. In 90% of the cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing, to the other parent. Unfortunately, in most of the cases, we, the Judges plead helplessness, whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years. Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to "intelligent preference", though at times they happen to be mere "intelligent manipulations". In U.K., a service known as "Children and  Family Court Advisory and Support Service" (CAFCASS) is available, to  assess if the views expressed by children could be regarded as "intelligent preference". 

40. Sub-Section (3) of Section 17 of the Guardians and Wards act, 1890 prescribes that if the minor is old enough to form an intelligent preference, the Court may consider that preference. But, the weight to be accorded to the preference of the minor, depends upon various other factors. While the intelligent preference of the minor could be one of the several factors, it could never be the controlling factor.  

41. Article 12 of the United Nations Convention on the Rights of the Child reads as follows : 

| "1.States Parties shall assure to the child, who is
| capable of forming his or her own views the right to
| express those views freely in all matters affecting
| the child, the views of the child being given due
| weight in accordance with the age and maturity of the
| child; and 
| 2.For this purpose, the child shall in particular be
| provided the opportunity to be heard in any judicial
| and administrative proceedings affecting the child,
| either directly or through a representative or an
| appropriate body in  a manner consistent with the
| procedural rules of the National Law."

42. What is statutorily provided under Section 17(3) is what is reflected in Article 12 of the Convention on the Rights of the Child. Therefore, it has become customary for the Courts to speak to the child for a few minutes, especially while deciding interlocutory applications. But, when the Court is confronted with a stubborn child, the execution of a decision to hand over the child to one of the parents, against the wishes of the child, becomes a herculean task.  

43. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court. If a Court does nothing more, than merely recording the unwillingness of the child to go with one of the parents, the Court would be seen as surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.

44. Therefore, unable to go solely on the basis of the unwillingness of the child and also with a view to find out the truth, I acceded to the request of the first respondent-mother and passed an order on 2.2.2011, directing the applicant to take the child to Dr.V.Jayanthini, Head of the Department of Child Guidance Clinic attached to the Government Childrens Hospital, Chennai, for an assessment. The purpose of the assessment was to find out (i) if the child has any deep rooted problems in going with the respondents or (ii) if the child was acting under external influences.

45. The said order was complied with and the team of professionals headed by Dr.V.Jayanathini submitted an interim report on 17.2.2011. In their report, they expressed a desire to have an interaction with the parents and also requested for a report from the school, to find out the academic performance, peer group interaction and the behaviour of the child in the school. Therefore, I passed an order on 17.2.2011, directing the applicant and the first respondent to have an interaction with the team of professionals and also directed the school to send a report. 

46. Accordingly, the applicant and the first respondent interacted with the team of professionals, after which Dr.V.Jayanthini submitted reports dated 1.3.2011 and 3.3.2011. I do not wish to record here, the entire contents of all the 3 reports, but would just make a reference to a few permissible aspects, so that the right to privacy and the interests of the child are not offended. 

47. In the first report dated 17.2.2011, the team of professionals have opined that the child has no deep rooted problems, but that since the applicant-father is providing a permissive environment, the child is making a preference to stay with the father. They have also opined that the parenting style of the first respondent-mother is authoritative and that the child relents the disciplinary approach adopted by her. But taking into account the fact that the mother provides an authoritative environment, while the biological father provides a permissive environment, the Experts have opined that it is better to provide a neutral, nurturing, firm, consistent, secure and stable environment for the child's future emotional and social well being.

48. In order to remove any doubt in my mind about what an authoritative parent would do, in contrast to a permissive parent, the team of Experts have also sent me the extracts from the book "Child Psychology  A Contemporary View Point", Third Edition by the authors E.Mavis Hetherington and Ross D.Parke. 

In the Chapter relating to "Parenting Styles and Children's Behaviour", a permissive indulgent parent is defined by the following characteristics:-

"Rules not enforced
Rules not clearly communicated
Yields to coercion, whining, nagging, crying by the child
Inconsistent discipline
Few demands or expectations for mature, independent behaviour
Ignores or accepts bad behaviour
Hides impatience, anger, and annoyance
Moderate warmth
Glorification of importance of free expression of impulses and desires."

In the same Chapter, an authoritarian parent is defined by the following characteristics:-

"Rigid enforcement of rules
Confronts and punishes bad behaviour
Shows anger and displeasure
Rules not clearly explained
View of child as dominated by uncontrolled antisocial impulses
Child's desires and opinions not considered or solicited
Persistent in enforcement of rules in the face of opposition and coercion
Harsh, punitive discipline
Low in warmth and positive involvement
No cultural events or mutual activities planned
No educational demands or standards."

In contrast, an authoritative parent is defined by the following characteristics:-

"Firm enforcement of rules
Does not yield to child coercion
Confronts disobedient child
Shows displeasure and annoyance in response to child's bad behaviour
Shows pleasure and support of child's constructive behaviour
Rules clearly communicated
Considers child's wishes and solicits child's opinions
Alternative offered
Warm, involved, responsive
Expects mature, independent behaviour appropriate for the child's age
Cultural events and joint activities planned
Educational standards set and enforced."

49. The Psychiatrists have made it clear that the first respondent-mother is only an authoritative parent and not an authoritarian parent. Since an authoritative parent is concerned only with the interest and welfare of the child, I am of the view that the first respondent-mother will groom the child into a disciplined, focussed and ambitious person. On the other hand, the applicant who has been found to be a permissive-indulgent parent, may not groom the child as a disciplined child. 

50. However, every child needs a combination of both parenting styles viz., an indulgent parenting style and an authoritative parenting style, so that they get the best of both. In most of the homes, which are normal, one of the parents is authoritative and the other, permissive. (Thirty years ago, the father used to be authoritative and the mother permissive, but the scenario has got reversed today). Therefore, in an united and normal home, the children have the best of both, but in broken homes, they have the worst of both.

51. In the second report sent by Dr.V.Jayanthini, on 1.3.2011, she has stated that during his stay in New Zealand from July 2008 to May 2010, the child studied in Milford School, North Shore City and that the school reports show that the child was never under any emotional or physical stress during the said period of 2 years. Based upon the video clippings taken in New Zealand, the Psychiatrist has come to the conclusion that the life of the minor child in New Zealand with his mother and siblings, was happy and cheerful.

52. In their final opinion, they have stated that "given ample time, the child can come to terms with his mother through a systematic and graded approach". The Experts have also stated that because of his preference to a permissive environment, the statements made by the child cannot be taken at face value. 

53. The Experts have finally concluded that it is advisable to make the child come to terms with his mother, under professional guidance, to facilitate a smooth transition. 

54. In the report dated 22.2.2011, forwarded to Dr.V.Jayanthini, the Rector and Correspondent of Don Bosco Matriculation Higher Secondary School, has stated that the child joined the school on 11.10.2010 and that out of 84 working days from 11.10.2010 till 22.2.2011, the child attended school only for 39 days. He had been absent for 45 days. The report says that though his performance of class work is good, his performance of home work is only satisfactory.

55. Therefore, I cannot allow the child to be in a permissive environment at all times, as it will not be in the interest and welfare of the child. It is true that the child had shown, in my own presence, an unprecedented stubbornness in his refusal to go with the mother. But such an attitude cannot come within the meaning of the expression "intelligent preference". 

56. As stated earlier, the desire or the wish of a child, cannot be elevated to the position of an intelligent preference. In Rama Iyer vs. Nataraja Iyer {AIR 1948 Mad. 294}, a Division Bench of this Court held that a minor child of 13 years cannot be said to be able to form an intelligent preference and that the minor's opinion, especially when his attitude in refusing to go to his natural parent (father in that case) is induced, is not entitled to any weight at all. Following the above decisions, another Division Bench comprising of P.Govindan Nair, C.J., and S.Padmanabhan, J., pointed out in Babubhai Patel vs. Madavi Patel {1979 (1) MLJ 244}, that the question would always be whether the child is of an age and maturity when it will be able to make an intelligent preference nor that the attitude at that time will be governed by the immediate past, the way in which she was brought up, the immediate attachments and her likes and dislikes at the moment, which can easily be swayed either by too much affection or even by too much of intelligence, which is not in the interests of the child. 

57. In Diane Q.BROWN vs. George C.BROWN {362 SC 85 (2004) 606 S.E.2d 785}, the Court of Appeals of South Carolina held as follows:-

| "In determining the best interests of the child, the
| Court must consider the child's reasonable preference
| for custody. The Court shall place weight upon the
| preference based upon the child's age, experience,
| maturity, judgment, and ability to express a
| preference". S.C.Code Ann. $ 20-7-1515 (Supp. 2003); 
| see also Moorhead vs. Scott, 259 S.C. 580, 585, 193
| S.E.2d 510, 513 (1972) (holding the wishes of a child
| of any age may be considered under all the
| circumstances, but the weight given to those wishes
| must be dominated by what is best for the welfare of
| the children). The significance to be attached to the
| wishes of children in a custody dispute depends upon
| the age of the children and the attendant
| circumstances. 
| See Smith vs. Smith, 261 S.C. 81, 85, 198 S.E.2d 271,
| 274 (1973). The child's preference will be given
| little weight where the wishes of the child are
| influenced by the permissive attitude of the preferred
| parent. Id. at 86, 198 S.E.2d at 274".

58. The above decision was quoted with approval in William John Payne vs. Shery Payne {382 SC 62 (2009) 674 S.E.2d. 515}, wherein Hearn, C.J., pointed out that "while child's reasonable preference is a factor, it is not controlling". These decisions were based upon one of the earliest decisions of the Supreme Court of South Carolina in Moorehead vs. Scott {259 SC 580 193 S.E.2d. 510}, wherein it was pointed out that "the wishes of a child of any age may be considered under all circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the children". 

59. The decision in Moorehead, was followed by the Supreme Court of South Carolina in Robert B.Smith vs. Clara Susan Smith {261 SC 81 (1973) 198 S.E.2d. 271}. While reversing the decision of the lower Court to place the child in the custody of the father, the Court took note of the fact that the wishes of the child may have been influenced by a permissive attitude on the part of the father. The following passage from the said decision is of relevance:-

| "The child in this case had been in the custody of
| the father for some time prior to the hearing in the
| lower Court. The record strongly indicates that the
| wishes of the child may have been influenced by a
| permissive attitude on the part of the father. The
| report of the Probation Officer of the Family Court,
| although recommending that custody be given to the
| father, summarised her view as to the child's wishes
| as follows:
| | "Robbie expressed a desire to stay with his father,
| | but to be allowed visitation with his mother. He
| | pointed out few negatives as far as living with his
| | mother and his motives for wanting to stay with his
| | father are questionable as pointed out by Linda Smith
| | (the father's second wife). She feels Robbie is given
| | more in all ways from his father now because of the
| | tension of not knowing if Robbie will get to stay with
| | him. Robbie knows this and is able to manipulate both
| | his father and his mother with the circumstances.". 

Therefore, as pointed out in the last portion of the above extract, if the Court finds that the child is able to manipulate the elders (including the parents and the Court) and that the preference made by the child is on account of a permissive atmosphere created by the retaining parent, it is the duty of the Court to ignore such preference.

60. In re F(Children) (Abduction, Rights of Custody) {2008 EWHC 272 (Fam)}, the mother of the two children aged 13 and 11 removed them from Poland to England. The father commenced proceedings under The Hague Convention on the Civil Aspects of International Child Abduction, 1980, as scheduled to the Child Abduction and Custody Act, 1985, for their immediate return to Poland. The mother raised a defence that the children objected to being returned and that they had attained an age and degree of maturity at which it was appropriate to take into account their views. Her defence was based upon Article 13 of the said Convention. She also relied upon the report of an expert, who interviewed both the children  and found both of them to be intelligent, articulate, able to reason well and to  put over their views. The expert had also opined that the children had not been coached or coerced in what to say during the interview and that their responses were spontaneous, as mirrored by their body language. It was stated by the expert in her evidence that she was satisfied of the genuineness of the assertions made by the mother that one of the boys would run away if ordered to return and the other would hide where no one could find him.

61. Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 obliges the concerned Authority to order the return of a child which was wrongfully removed or retained from one jurisdiction to another. However, Article 13 of the Convention prescribes three exceptions namely (i) cases where the person having the care of the person of the child was not actually exercising custody rights at the time of removal or retention or had consented or acquiesced in the removal or retention; (ii) cases where there is a grave risk that the return of the child would expose it to physical or psychological harm and (iii) cases where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. 

62. Therefore, in the aforesaid case, the mother pleaded (i) acquiescence and (ii) the objection of the children to their being returned to Poland, in terms of Article 13. Dealing with the defence relating to the objection of the children, Sir Mark Potter said in paragraphs 44 and 45 as follows :  

"44. In In re M (Abduction: Childs Objections) [2007] 2 FLR 72 the court recently reviewed the questions which need to be explored by a judge when considering a defence of childs objections. They may be summarised in this way. (1) Are the objections to return made out? In this connection is the child objecting to being returned to the country of habitual residence, as opposed simply to expressing a preference for staying with the abducting parent? (2) Has the child reached an age and degree of maturity at which it is appropriate to take account of his views? (3) In this connection have those views been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to an extent which requires such views to be disregarded or discounted? (4) If, and to the extent that, it is appropriate to take account of the childs objections, in exercising the courts discretion whether or not to order return, what weight should be placed on those objections in the light of any countervailing factors, and in particular the philosophy of the Convention or what have been called the Convention considerations. These are that both the deterrence of abductors and the welfare interests of children are generally best served by the making of an order for prompt return to the requesting state for consideration of the position by the appropriate home court; they also include comity and respect for the judicial processes of the requesting state, as well as welfare considerations directed to the position of the child in question.

      45.As to question (1) I am satisfied that each of the childrens objections have been made out in the sense that they are sincere and largely based upon an objection to return, as opposed to a simple preference for staying in the care of the mother. If a childs objections to return result solely from a desire to remain with the abducting parent, who in turn does not wish to return, then little or no weight should be attached to the childs objection: see S v S (Child Abduction) (Childs Views) [1992] 2 FLR 492. However I do not think that is the case here. The objections very considerably rest upon the happiness and feeling of security of the children in their new school where they are doing so well and their general environment and feelings of security in England. Both children state that, even if their mother went back, they would themselves find it very difficult to return. It is also plain that such reluctance stems from the prospects of a renewed regime of visits to the father in the face of what they state to be his unpredictability and occasional violence, and in that sense their expressed desire to return depends in part upon their preferred choice of carer. However, the wording of article 13 does not inhibit the court from considering the objections of a child to returning to a particular carer: see In re M (A Minor) (Child Abduction) [1994] 1 FLR 390. Similarly, as it seems to me, the court may consider objections to returning to a particular regime of contact with a feared parent, albeit that consideration is of little influence where (as here) day to day care would remain with the abducting parent on her return who would have the opportunity to apply to her home court for a welfare-based review of that regime and/or for consent to reside with the children in England."   

63. A reading of the portions extracted above would show that the objections of a child, whether (i) it be for his/her return to the country from where he/she was removed or (ii) it be for his/her return to the parent holding custody before its removal, has to be tested on the touchtone of the following principles :

i. the age and degree of maturity of the child;

ii. Whether the objection of the child has been shaped or coloured by undue influence or pressure directly or indirectly exerted by the abducting parent to such an extent that it requires such views to be disregarded or discounted;

iii. Whether the objections of the child result solely from a desire to remain with the abducting parent, then little or no weight should be attached to the child's objections.

64. In paragraph 58 of his opinion, Sir Mark Potter quoted the observations of Baroness Hale of  Richmond in the House of Lords, In re M.(Children) (Abduction: Rights of Child) (2008) 1 AC 1288.  The observations of Baroness Hale, quoted in paragraph 58 of the above decision, read as follows : -

"These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a childs views. Taking account does not mean that those views are always determinative or presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the childs objections, the extent to which they are authentically her own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the childs objections should only prevail in the most exceptional circumstances.

65. After quoting the above observations with approval, Sir Mark Potter went on to consider in paragraphs 66 and 67, the broader welfare considerations, inherent in the objections voiced by the children. It is on account of these other welfare considerations, which formed the basis for the views of the children that the Court ultimately dismissed the application of the father in that case. Therefore, it is clear that the weight to be attached to the objections of the child not only depend upon his age and maturity, but also depend upon broader welfare considerations. 

66. In the decision of the House of Lords, cited by Sir Mark Potter, the question was whether or not two girls aged 13 years and 10 years should be summarily returned to Zimbabwe under the Hague Convention on the Civil Aspects of Child Abduction, 1980. While discussing at length, the obligations to hear the child's views, Baroness Hale of Richmond, with whom the other Lords concurred, pointed out that "children must not be given an exaggerated impression of the relevance and importance of their views"  in such cases. The opinion of the learned Judge found in paragraph 57 of the decision makes an interesting reading and hence, it is extracted as follows : 

"As pointed out in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, it is for the court to consider at the outset how best to give effect to the obligation to hear the childs views. We are told that this is now routinely done through the specialist CAFCASS officers at the Royal Courts of Justice. I accept entirely that children must not be given an exaggerated impression of the relevance and importance of their views in child abduction cases. To order separate representation in all cases, even in all childs objections cases, might be to send them the wrong messages. But it would not send the wrong messages in the very small number of cases where settlement is argued under the second paragraph of article 12. These are the cases in which the separate point of view of the children is particularly important and should not be lost in the competing claims of the adults. If this were to become routine there would be no additional delay. In all other cases, the question for the directions judge is whether separate representation of the child will add enough to the courts understanding of the issues that arise under the Hague Convention to justify the intrusion, the expense and the delay that may result. I have no difficulty in predicting that in the general run of cases it will not. But I would hesitate to use the word exceptional. The substance is what counts, not the label."

67. Taking into account all the above, I am of the view that the following interim arrangement would help the child get back to its original position:-

(i) After school hours on every Friday, the applicant shall take the child and hand it over to the first respondent at her residence. On the following Monday, the first respondent shall take the child and leave him at school in the morning. The applicant shall take the child to his house after school hours on Monday evening. In other words, the applicant shall take care of the child from Monday to Friday evening and the first respondent shall take care of the child from Friday evening to Monday morning.

(ii) If the child is very adamant and refuses to go to the house of the respondents, the applicant shall take the child to Dr.M.Papakumari, Child Psychologist, who has assured a smooth transition and about which the final report of Dr.V.Jayanthini also contains a mention. 

(iii) It is the responsibility of the applicant to ensure that the child co-operates. If the above arrangement does not work out, I may be left with no alternative except to order the child to be admitted to a residential school, in the next academic year, so that the child is taken out of a totally permissive environment.




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