compromise on the issue of succession is not feasible, at least
some working arrangement, some common ground, upon the issue
of access and custody of the children, is necessary. For this, there
should be no linkage between the issue of succession and the issue
of access and custody. Neither parties, in short, should make use
of the children as a bargaining point. This is certainly not in the
interests of the children. This is in fact, contrary to the interest of the
children.
The 'welfare of the children' or the 'welfare principle' remains
the paramount consideration in this jurisdiction. This will not be
achieved by over emphasizing upon allegations and counter
allegations leveled by the parents against each other. The Hon'ble
Apex Court in the case of Mousami Moitra Ganguli Vs. Jayant
Ganguli
, has held that it is the welfare and interests of the child
and not the rights of the parents which is the determining factor for
deciding the question of custody and the question of welfare of the
child has to be considered in the facts of each case and decided
cases on the issue may not be appropriate to be considered as
binding precedents.
In opposition, Taha and Ibrahim, through their learned counsel
Mr. R.T. Lalwani, were at pains to criticise Arwa and Fatema for
having abruptly destroyed marital ties of over seventeen years and
their act of abducting the children to America, on the very night of
demise of 52nd Dai-ul-Mutlaq , in a bid to defeat the jurisdiction of
the Indian Courts. They point out that the action was both
premeditated and malicious. The action was in furtherance of
installing their father Khuzaima Qutbuddin, as 53rd Dai-ul-Mutlaq, in
preference to Mufaddal Saifuddin. The lives of children were put into
peril. There was no regard to physical and emotional security of the
children. Rather, the children were exploited by portraying upon
social media network that they support the claim of their maternal
grandfather, in preference to the claim of their paternal grandfather
for the position of 53rd Dai-ul-Mutlaq.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8231 OF 2015
Arwa Taha Saifuddin .. Petitioner
vs.
Taha Mufaddal Saifuddin .. Respondent
CORAM : M. S. SONAK, J.
Date of Pronouncing the Judgment : 23 December 2015
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is finally disposed of.
2] Considering the nature of the order, which is proposed to be
made, as also the commonality of issues involved, it will be
appropriate to dispose of these two petitions with a common order.
3] The Petitioners, Arwa and Fatema are sisters. Since last
seventeen years, they have been married to Taha and Ibrahim, who
are cousins inter se. Arwa and Taha have five children viz.
(i)Sakeenah (16), (ii) Mohammad (15), (iii) Tahir (12), (iv) Mustafa
(10) and (v) Murtaza (7). Similarly, Fatema and Ibrahim have four
children viz., (i) Khadija (17), (ii) Murtaza (14), (iii) Nisreen (11) and
(iv) Husain (7). The children, are great grandchildren of the 52nd
Dai-ul-Mutlaq, Syedna Mohammed Burhanuddin, a religious leader
of the Dawoodi Bohra Community (a Muslim Sect), who passed
away in Mumbai on 17 January 2014. Upon his demise, a dispute
has arisen with regard to the claim for the position of 53rd Dai-ulMutlaq.
Amongst other matters, a civil suit is pending on the
Original Side of this Court between the rival claimants.
4] The rival claimants for the position of 53rd
Dai ul-Mutlaq are
Khuzaima Qutubuddin, the father of Arwa and Fatema (maternal
grandfather of the children) on one hand and Mufaddal Saifuddin,
Taha's father and Ibrahim's uncle (paternal grandfather of the
children), on the other. This rift, has virtually split the marital ties
between the parties, as Arwa and Fatema have aligned with
Qutubuddin and Taha and Ibrahim have aligned with Saifuddin. The
rift has split the Dawoodi Bohra Community, as well. In this mega
rift, reminiscent of the strife for the Mogul Throne however, the
children, all of them, find themselves in a predicament of having to
chose between either of their parents, their tender and innocent
age, notwithstanding.
5] Their parents have initiated proceedings against each other
seeking various reliefs, including their custody and access. The
orders impugned in these petitions arise out of Petition No. D-59 of
2014 instituted by Taha against Arwa and Petition No. D-58 of 2014
instituted by Ibrahim against Fatema in the Family Court at Bandra.
The impugned orders are apparently innocuous. The impugned
orders defer any decision on the issue of interim custody and
access, until the Counselors or Child Welfare of Officers hold
counseling sessions with the children and submit reports to the
Family Court, which might assist the Family Court in making the
difficult, but the necessary decision in the matter.
6] Considering the nature of the impugned orders, learned
counsel for the parties were called upon to address me, inter alia,
upon the scope and advisability of interference, at this stage. The
learned counsel for the parties, together with all other issues, have
made their submissions upon such issue, as well.
7] Arwa and Fatema, through Mr. Haresh Jagtiani, learned
senior advocate appearing for them, recalled the atrocities and
domestic violence allegedly, perpetrated against them by their
husbands, which forced them to flee to America with the children
and to seek asylum as well as legal custody there. They point out
that the California Court, even after ruling that the appropriate legal
forum to resolve the dispute would be the Indian Courts and after
directing restoration of custody of the children to the fathers, had
nevertheless, granted them several reliefs, including custody for
seven days in each month as well as unlimited telephonic access.
They bitterly complain that their husbands, in disregard to the
directions made by the California Court, have virtually cut off the
access to the children. Some of the children have been sent away
to Surat and others are kept in virtual seclusion at Mumbai. They
point out that no access is being offered, whether telephonic or
otherwise. They point out that there is a very serious form of tutoring
of the children and it is apprehended that the sessions with
Counselors for the interview with the children in this situation, would
be merely a farce. They submit that the Family Court ought to have
made the orders for restoration of custody at least to the extent of
seven days each month, so as to achieve level playing field, before
directions were issued to the Counselors, to have interview
sessions with the children and make their reports to the Family
Court.
8] In opposition, Taha and Ibrahim, through their learned counsel
Mr. R.T. Lalwani, were at pains to criticise Arwa and Fatema for
having abruptly destroyed marital ties of over seventeen years and
their act of abducting the children to America, on the very night of
demise of 52nd Dai-ul-Mutlaq , in a bid to defeat the jurisdiction of
the Indian Courts. They point out that the action was both
premeditated and malicious. The action was in furtherance of
installing their father Khuzaima Qutbuddin, as 53rd Dai-ul-Mutlaq, in
preference to Mufaddal Saifuddin. The lives of children were put into
peril. There was no regard to physical and emotional security of the
children. Rather, the children were exploited by portraying upon
social media network that they support the claim of their maternal
grandfather, in preference to the claim of their paternal grandfather
for the position of 53rd Dai-ul-Mutlaq.
9] Taha and Ibrahim point out that the elder children are
admitted into an educational institution in Surat, which apart from
offering high quality eduction is an institution founded by the family
for religious instruction, which is extremely vital for all round
development of the children. Similarly, the younger children school
in Mumbai. They point out that the children are rightly embittered by
the treachery of their mothers and they do not wish to return to their
mothers. They rely upon the decision of the Hon'ble Apex Court in
case of Gaytri Bajaj Vs. Jiten Bhalla 1
, to submit that in matters of
this nature, the wishes of children are paramount and based upon
the same custody or access, even for a short duration of time
cannot be granted to Arwa and Fatema. They submit that the very
institution of these petitions is premature, as the Family Court is yet
to make even an interim order on the issue of custody and access.
10] The record indeed indicates that Arwa and Fatema, on the
night of demise of the 52nd Dai-ul-Mutlaq fled to America with the
children. They eventually applied to the superior Court of California,
Bakersfield C.A. for temporary restraining order pursuant to
Domestic Violence Protection Act (DVPA) and for custody and
visitation orders relating to the minor children. Taha and Ibrahim
contested the proceedings, both, on grounds of jurisdiction and
merits. A summary enquiry was held in the matter and finally, the
California Court on 26 February 2015, made the following order:
Accordingly, the Court finds that the facts described
necessitate the return of the children to the custody of the
Respondent forthwith, subject to the stay granted below.
1 (2012) 12 SCC 471
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The Court has determined these orders are necessary to
protect the minor children and are in the children's best
interest. The Court awards joint legal custody to both
parents, with sole physical custody to Respondent.
Petitioner shall have visitation with the minor children in
India up to 48 hours' notice to Respondent. Visitation shall
occur in the city of residence of the minor children and
may be up to one week in length each thirty days.
Petitioner shall have reasonable telephone or other
electronic contact with the minor children and the children
shall have unlimited, unmonitored telephone or other
electronic contact with the Petitioner.
Section 3424(b) provides that in the event there is no
previous child custody order to be enforced under the
UCCJEA and a child custody proceeding has not been
commenced in a court of a state having original
jurisdiction, this Court's child custody determination shall
remain in effect until an order is obtained from a court of a
state having jurisdiction under the relevant statutes. No
evidence was presented that there is such an order.
Consequently, the Court's order will remain in effect until a
court of a state having jurisdiction under sections 3421 to
3423, inclusive makes orders regarding the minor children.
11] The California Court has held that the California is not the
“Home State” of the minor children and the Court's jurisdiction is
limited to exercise of temporary, emergency powers under Section
3424 of the Family Code. Arwa's and Fatema's request for DVPA
restraining order was denied. However, joint legal custody was
awarded to both the parents, with sole physical custody to Taha and
Ibrahim. Arwa and Fatema were granted visitation rights in the city
of residence of the minor children in India upto one week in length
each thirty days. Arwa and Fatema were also granted reasonable
telephone or other electronic contacts with the children. The
California Court clarified that its order was to remain effective until
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the Court of the State having jurisdiction under Sections 3421 to
3423, inclusive of the Family Code makes orders regarding the
minor children. The parties, upon their return to India, have
instituted proceedings in the Family Court at Bandra, which would
be the Court of the State, having jurisdiction in the matter. As noted
earlier, it is in these proceedings that the impugned orders came to
be made.
12] In terms of the California Court's order, Taha and Ibrahim
presently have the sole physical custody of the children. However,
even though the California Court had awarded joint legal custody to
both the parents as well as issued directions in the matter of
visitation rights and electronic access, at least presently, the same
has been denied by Taha and Ibrahim to Arwa and Fatema. Only in
pursuance of orders made by this Court, on about two occasions,
Arwa and Fatema could meet the children at the designated venue
for couple of hours, in the presence of Counselors.
13] On 3 September 2015, taking note of the circumstance that
the counseling process in terms of the impugned order has already
commenced, certain directions were issued in furtherance of the
same. The venue of session scheduled for 4 September 2015 at the
counseling center at Family Court, Bandra was shifted to a more
conducive venue suggested by the parties, where the children could
be more comfortable and responsive. Directions were issued to
Taha and Ibrahim to escort the children to the venue lobby and
leave the children to spend about three hours with their mothers, in
presence of the Counselors. The Counselors were also requested
to submit their reports of the sessions. Similar exercise was directed
by the order dated 16 September 2015.
14] Although, visitation and access was not as smooth as it
should have been, at least some beginning was made in the matter.
The Counselors reports bear this position out. At this stage, it will
not appropriate to make any comments upon the reports, since the
Family Court is yet to consider the same. Suffice to indicate that the
Counselors have noted that though circumstances and events have
affected and influenced the children's views and feelings towards
their mothers, bonds exist and therefore, access to the mother
should be considered favourably. They have opined that counseling,
both, of the children as well as the parents should continue in the
interest of paramount welfare of the children. They have opined that
though access may not have been smooth, modalities can be
worked out to ensure that the access is smooth and meaningful.
They have opined that the access may be at the homes of the
parties or at some other conducive venue. If there is no agreed
venue, as a last resort, access at children's complex of the Family
Court, Bandra may be considered. In the reports, the Counselors
Ms Freny Italia, Muskaan Project of Tata Institute of Social Service
Sciences, Ms V.S. Athavale and Ms S.B. Jagtap attached to the
Family Court, Bandra, have made fairly objective assessment of the
interaction and the situation. The Family Court, will no doubt, take
into consideration the reports of the Counselors.
15] At the request of Taha and Ibrahim, as contained in Civil
Application Nos. 2578 and 2579 of 2015, and at the urging of
Mr.Lalwani, the learned counsel for Taha and Ibrahim, I interacted
with the children for a couple of hours at the Chambers. The
interaction with the children was extremely meaningful and
illuminating. They are wonderful children, innocent, loving and at the
same time resilient, sensitive and quite understanding. The children
were absolutely courteous and made sincere and concerted efforts
at teaching me to write Arabic. The children are widely traveled and
enthralled me with the tales of their journeys. The elder children
explained to me some basic tenets of their religious faith and their
pilgrimage to Mecca. The elder boys did create an impression that
they were comfortable with the present custodial position, but were,
by no means hostile, when the topics swerved to their mothers. The
elder boys did appear to be under the influence of their fathers,
paternal family members, family customs and the position of the
family in the community. They were conscious of the rift between
the paternal and maternal families for succession to the position of
53rd Dai-ul-Mutlaq. The smaller children, though reeling under
similar influence, were however more receptive to the prospect of
interactions with their mothers. Overall, the interactions with the
wonderful children, left me with the impression that these children,
like perhaps any other children, seem to wonder, as to why they
have been placed in such a predicament and why they cannot have
a normal childhood, a normal family life, abounding in love and care
from both their parents.
16] At this stage, there is obviously no question of going into the
rival claims of the parents in the matters of their allegations and
contentions against each other. Whatever the merits or otherwise of
such rival claims or allegations, the real question is whether and to
what extent they ought to impact (at least legally) the immediate
issues of custody and access to the children. There is no doubt that
the events, as have unfolded themselves, have had a tremendous
impact upon the children, who are but innocent, sensitive and
intelligent children. Obviously, the children's domestic lives have
been shattered by the events. Howsoever, resilient picture they may
portray, they obviously yearn for the love, care and emotional
security from both their parents. Howsoever bold face or cheerful
countenance they may present, they are obviously distraught by the
unfortunate events, which are neither of their creation nor over
which, they have any control whatsoever.
17] Rigid formality not being the mandate of proceedings under
the Family Courts Act, in the course of my interaction with the
parents, I did make an earnest plea to the parents and their counsel
to attempt to arrive at some settlement, at least upon the limited
issues of shared custody and access for the sake and welfare of
their children. The parents were called upon to consider whether
some common ground could be arrived at, either by themselves or
through mediation of some elders from the community, so that the
children are spared of all this strife, so that the children are not
made to choose between either of their parents. The parents were
called upon to consider whether there can be some temporary
cessation of hostilities, at least upon issues of shared custody and
access to the children. From the facts and circumstances,
presented up to now, it is quite doubtful whether either of the
parents will be 'winners' in the real sense, in this unfortunate cause,
though, quite certainly, the children will surely be the 'losers' in the
ultimate run if the parents do not arrive at some workable
arrangements on emergent basis. Looking to the age of the
children, their predicament, their trauma, not too much of their
childhood remains. Both, the parents as well as the children, will
never be in a position to retrieve this squandered time, this precious
childhood, which is ticking away. There is emergent necessity to
distinguish between the personal disputes of the parents and the
welfare of the children. There is emergent necessity to distinguish
between the disputes to the position of Dai-ul-Mutlaq and the
welfare of the children. The linkage of the two issues, is obviously
not in the interests of the children. Whatever the unfortunate past, at
least for the future, neither of the parents should even attempt to
use the children as pawns upon the Chess Board they have chosen
to spread out for themselves.
18] To the credit of the parents, as well as the learned counsel
appearing for them, it must be noted that they did make attempts,
insufficient though, they may appear at the present. They have
however, assured me that such attempts will continue. The difficulty
mainly lay in the inability on the part of Taha and Ibrahim to let
bygones be bygones. The difficulty also lay in the inability of either
parties to disassociate the issue of custody and the issue of
succession to the position of Dai-ul-Mutlaq. To the parties,
succession seemed to be the paramount consideration. In the
jurisdiction with which we are concerned, however, the paramount
consideration is the welfare of the children. Howsoever difficult this
may presently appear, the welfare of the children requires that they
are spared of such issues. The children require the unconditional
love and security of both their parents, if possible together, and if
not possible, separately. Such unconditional love and security, is in
fact, their right, which is presently being denied to them. Lord
Hausworth in Re, O'Hara2
has quoted what Fitz Gibbon L.J. has
said in Re, Thain3
:
“ The welfare of the child is no doubt the first and
paramount consideration, but it is one amongst several
other considerations the most important of which, it
seems to me, is that the child should have opportunity of
winning the affection of its parent and be brought for that
purpose into intimate relation with the parent”
19] The impugned orders have worked themselves out to some
extent. At least some sessions with the Counselors have taken
place. The Counselors report are on record. At least some ice has
broken in the form of some limited access to Arwa and Fatema. The
Counselors have unanimously opined that such access should
continue. Such access is in the interest of the children. The access,
presently, might not have been smooth. But modalities need to be
worked out. Confidence building measures are necessary. Above
all, genuine cooperation from both the parents is vital. If any
compromise on the issue of succession is not feasible, at least
2 (1990)2 IR 232
3 (1926) Ch 676
some working arrangement, some common ground, upon the issue
of access and custody of the children, is necessary. For this, there
should be no linkage between the issue of succession and the issue
of access and custody. Neither parties, in short, should make use
of the children as a bargaining point. This is certainly not in the
interests of the children. This is in fact, contrary to the interest of the
children.
20] The 'welfare of the children' or the 'welfare principle' remains
the paramount consideration in this jurisdiction. This will not be
achieved by over emphasizing upon allegations and counter
allegations leveled by the parents against each other. The Hon'ble
Apex Court in the case of Mousami Moitra Ganguli Vs. Jayant
Ganguli4
, has held that it is the welfare and interests of the child
and not the rights of the parents which is the determining factor for
deciding the question of custody and the question of welfare of the
child has to be considered in the facts of each case and decided
cases on the issue may not be appropriate to be considered as
binding precedents. To the same effect, are the observations in
paragraph 30 of Sheila B. Das Vs. P.R. Sugasree5
.
4 2008 (7) SCC 673
5 2006(3) SCC 62
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21] In paragraph 12 of Gaytri Bajaj (supra), the Hon'ble Apex
Court has made reference to the exhaustive consideration of the
law relating to custody of minors. The same reads thus:
12. The law relating to custody of minors has received
an exhaustive consideration of this Court in a series of
pronouncements. In Gaurav Nagpal v. Sumedha Nagpal
2009 1 SCC 42 the principles of English and American law
in this regard were considered by this Court to hold that
the legal position in India is not in any way different.
Noticing the judgment of the Bombay High Court in
Saraswati Bai Shripad Ved v. Shripad Vasanji Ved- 1941
AIR (Bom) 103; Rosy Jacob v. Jacob A Chakramakkal-
1973 1 SCC 840 and Thirty Hoshie Dolikuka v. Hoshiam
Shavdaksha Dolikuka – 1982 2 SCC 544 this Court
eventually concluded in paragraph 50 and 51 that:
“50. That when the Court is confronted with
conflicting demands made by the parents, each time
it has to justify the demands. The Court has not only
to look at the issue on legalistic basis, in such
matters human angles are relevant for deciding those
issues. The Court then does not give emphasis on
what the parties say, it has to exercise a jurisdiction
which is aimed at the welfare of the minor. As
observed recently in Mousmi Moitra Ganguli’s case
the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual
development and favourable surroundings but over
and above physical comforts, the moral and ethical
values have also to be noted. They are equal if not
more important than the others.
51. The word “welfare” used in section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the
child must also weigh with the Court as well as its
physical well being. Though the provisions of the
special statutes which governs the rights of the
parents and guardians may be taken into
consideration, there is nothing which can stand in the
way of the Court exercising its parens patriae
jurisdiction arising in such cases.”
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22] In Re McGrath (Infants)6
, Lindley L.J. , in 1893 observed
thus:
“... the welfare of the child is not to be measured by
money alone nor by physical comfort only. The word
welfare must be taken in its wides sense. The moral and
religious welfare must be considered as well as its
physical well-being. Nor can the ties of affection be
disregarded.”
23] Similarly, in Walker Vs. Walker and Harrison – noted in
(1981) NZ Recent Law 257, Hardy Boys J. observed thus
' “Welfare” is an all-encompassing word. It includes
material welfare, both in the sense of an adequacy of
resources to provide a pleasant home and a comfortable
standard of living and in the sense of an adequacy of care
to ensure that good health and due personal pride are
maintained. However, while material considerations have
their place, they are secondary matters. More important
are the stability an the security, the loving and
understanding care and guidance, the warm and
compassionate relationships, that are essential for the full
development of the child's own character, personality and
talents.'
24] Whilst there is no ambiguity at all that the welfare principle
remains the paramount consideration, the real difficulty arises in its
application to a given fact situation. There are several parameters
that go into the decision making process for determining where the
welfare of the children lies. Parental conduct, material well being of
the children, blood ties and kinship, age of the children, their sex,
re-marriage of the parents, continuity of care and wishes of the
children are some of the relevant parameters. The list is obviously
6 (1893) 1 Ch 143
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not exhaustive. A balancing exercise has to be undertaken by the
Court in an attempt to reach a decision which might best serve the
children's welfare. But as pointed out by Megarry J. in Re F (An
Infant), F vs. F7
, the problem cannot be solved arithmetically or
quantitatively by using some sort of 'points system'.
25] Mr. Lalwani has emphasized upon 'wishes of the children'.
His submissions almost suggested that this parameter is paramount
in resolution of disputes of custody and access. He relied upon
Gaytri Bajaj (supra), as an authority for the proposition that
custody and access to the mother, even for a short duration, ought
not to be granted, if the children wish otherwise.
26] The circumstances in the case of Gaytri Bajaj (supra), were
slightly different. The children, in the said case, were aged 17 and
11 years. For considerable period, they had lived away from their
mother. The mother had filed terms, in the matter of divorce by
mutual consent and had given up custody but retained only
visitation rights. After period of three years, the mother instituted a
suit for setting aside the consent decree and demanding custody of
the children. Even the Hon'ble Apex Court, did not outright reject the
claim for custody. As is recorded in paragraph '9' of the judgment
and order, the Hon'ble Apex Court, keeping in mind the position of
7 (1969) 2 ALL E.R. 766
the mother allowed her to make initial contact with the children and
gradually built up a relationship, if possible, so as to arrive at a
satisfactory solution to the impasse. Interim arrangements were
directed, which included overnight custody with the children. Even
the Hon'ble Apex Court, by means of personal interaction with the
children, made attempts to bring the issue with regard to custody
and visitation rights to the satisfactory conclusion. Only after due
consideration of the results of all this, the Hon'ble Apex Court, on
the basis of materials on record, came to the conclusion that the
children one of whom was on the verge of attaining majority did not
want to go with the mother. It is in these circumstances that the
Hon'ble Apex Court observed that the children having expressed
their reluctance to go with the mother, even for a short duration of
time, there is no option left but to hold that any visitation rights to
the mother would be adverse to the interests of the children.
Therefore, Gaytri Bajaj (supra), is not an authority for the
proposition that 'wishes of the children' is the only consideration or
the paramount consideration. The paramount consideration, in
terms of the statute as well as numerous authorities of the Hon'ble
Apex Court, including Gaytri Bajaj (supra) remains 'welfare of the
children'.
27] Besides, in the matter of custody and access, fact situation is
what matters the most and consequently, reliance upon precedents
can be mainly for culling out the principles involved. To that extent,
the utility of precedents in such jurisdiction is quite limited. Much
depends upon the facts and assessment, having regard to a host of
parameters in determining where the welfare of the children lies. In
Gaytri Bajaj (supra) itself, the Hon'ble Apex Court after taking
special notice of its earlier decisions in the cases of Mousami
Ganguli (supra) and Shiela Das (supra) has held that cases of
custody have to be considered in the facts of each case and the
decided cases on the issue may not be appropriate to be
considered as binding precedents.
28] The House of Lords in the case of Gillick Vs. West Norfolk
and Wisbech Area Health Authority8
, has held that wishes of the
children who are nearing majority or who can be shown to
understand the issues involved should be allowed to determine the
question where and in what manner they may live. The Gillick
principle (supra), finds statutory expression in Section 17(3) of the
Guardian and Wards Act, 1890, which provides that if the minor is
old enough to form an intelligent preference, the Court may
consider that preference.
8 1985 (3) ALL E.R. 402 (H.L.)
29] The 'wishes of the children' is no doubt, one of the relevant
parameters to be taken into consideration. However, this is neither
the only parameter nor the paramount consideration. Besides,
'wishes of the children' are not to be confused with some preprepared
statements of the children, as a result of tutoring or
perhaps even indoctrination. The 'wishes of the children' are not
statements made in the din of battle, under tremendous stress or
strain. Before a decision based upon 'wishes of the children' is
arrived at, regard must be had to the age and maturity levels of the
children, the circumstances in which the children are placed, the
children's perception as to their own welfare, possibility of tutoring
and indoctrination, dominant position of the custodial parent and
other such considerations. Further, it is necessary to create, as far
as possible, circumstances conducive to the exercise of intelligent
preference by the children.
30] The 'wishes of the children' have to be ascertained in the
proper manner and by the proper authority before any decision is
based upon them. One of the appropriate ways of ascertaining the
'wishes of the children' will be by means of interviews and
interactions with skilled Welfare Officers or Counselors. The
traditional view is, however, that the decision must be seen to be
taken by parents or the Court, so that the responsibility for the
decision does not rest with the children. In the case of Adams Vs.
Adams9
, Dunn L.J. observed thus:
The children should not be allowed “to feel that they have
to take the decision as between the father and the mother,
with which of them they shall live. The pressures on
children are quite sufficient when the marriage has broken
down and one of the parents has left home without putting
on them the additional burden of being made to feel that
they have to decide their own future”.
31] In matters of custody and access, the Family Court should be
conscious that it is not merely enforcing parental rights or
determining the rights of the parents. In such proceedings, there are
not two parties – the husband and the wife – but also a third party –
the children. That third party is the most important party in such
proceedings. Rigid formal procedures, which invariably inhere civil
proceedings before Courts of law, need not come in the way of the
Family Courts determining the welfare of the children. In re, K10
,
Lord Delvin, very aptly observed thus:
“In the jurisdiction parens patriae there are unquestionably
some principles of judicial inquiry which are not observed:
It is now realised that proceedings in respect to
custody, access etc., of children in a court of law are more
administrative in nature than, strictly speaking, judicial.
The procedure cannot, and should not, be that of
adversary litigation between two litigants. They are (and
should be) no-contentious proceedings. The first step in
this direction was taken by the English law in 1958 when
the law provided for court welfare officers, who are
entrusted with the duty of investigating and reporting in
cases concerning children whenever they were required to
do so by the court. Thus, the courts in dealing with
9 (1984) FLR 768
10 1963(3) WLR 435
questions of welfare of children no longer depend wholly
on the contentious evidence produced by the parties, but
can rely on the report of the trained and independent
investigators with opportunities of investigating in the
natural and real surroundings of the parties. By relying on
the report of court's own investigation – the court's
investigating officer - rather on the evidence of parties
which is more often than not motivated by the idea of
serving the interests of the parties, the court acts a real
parens patriae and is in a position to find out precisely
what is in the welfare of the child in a given case. In this
the court remains essentially a judicial court, though the
procedure followed is essentially administrative.
32] Therefore, upon cumulative consideration of various
parameters and the record the Court is required to act in the
children's best interests. In the exercise of such delicate jurisdiction,
the Court cannot abdicate judicial discretion, either to the wishes of
the children or even the reports of Counselors or Welfare Officers.
No doubt, all these are very relevant parameters. But the ultimate
decision has to be made by the Court, in exercise of its judicial
discretion. This, no doubt puts a very great responsibility upon the
Courts. Therefore, it should be appreciated that it is not possible for
the Court, in all situations to deal with what may be ideal for the
children, but simply what best can be done in the circumstances
presented. The typical dilemma faced by the Courts, in such matters
is described by Cumming -Bruce L.J. in the case of Clarke-Hunt
Vs. Newcombe11
, in the following words:
“There was not really a right solution; there were two
alternative wrong solutions. The problem for the judge was
11 (1983) 4 FLR 482
to appreciate the factors in each direction and to decide
which of the two bad solutions was the least dangerous,
having regard to the long-term interests of the children.....'
33] Applying the aforesaid principles and upon cumulative
consideration of the aforesaid facts and circumstances, I am of the
opinion that the impugned orders need not be set aside. Rather,
they need to be supplemented, so that the counseling as directed,
proceeds in a better manner and the entire process is rendered
more meaningful. Besides, upon prima-facie consideration of the
material on record, inter alia, in the form of Counselors' reports,
interaction with the children and their parents, the decision of the
California Court, though custody for seven days out of each thirty
days to the mothers cannot be considered at this stage, some
reasonable directions in the matter of access and visitation are
warranted. Whilst the present circumstances do not appear to be
appropriate for grant of custody for seven days, there is need to
restore and strengthen ties between the children and their mothers.
This process has to be gradual and confidence building measures
are therefore, appropriate. Any attempts to severe the maternal ties
would not be in the interests of the welfare of the children. After all,
the ties of motherhood are too strong for any natural destruction,
even if the contentions of Taha and Ibrahim as to the conduct of
Arwa and Fatema are to be accepted. The complete denial of
access and visitation rights to Arwa and Fatema, in the facts and
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circumstances of the present case, will not be in the interests of the
welfare of the children and their all round development, which, in
this jurisdiction remains the paramount consideration.
34] These petitions are therefore, disposed of with the following
orders:
A] Between 25 December 2015 and 31 March 2016, the
Respondents, in each of these petitions, are directed to grant
to the Petitioners access and visitation rights to the children
on at least four occasions. The first of such occasion shall be
between 25 December 2015 and 31 December 2015. The
precise date during this period may be decided by the
parties themselves depending upon the academic or other
schedules of the children. In case of any difficulty, the Family
Court which is seizin of the matters, may make appropriate
orders in this regard;
B] The access, as aforesaid, shall be for the entire day,
i.e., between 10.00 a.m. and 5.00 p.m., at the Petitioners'
apartment at Malbar Hill or any other suitable venue other
than the place where the children presently reside alongwith
the Respondents. The access shall be under the supervision
of at least one Counselor agreed to by the parties and
failing such agreement, deputed by the Family Court, which
is seizin of the matters;
C] The Respondents to make arrangements to reach the
children at the venue of access by 10.00 a.m. and pick up
the children by 5.00 p.m. on the same day. However, neither
the Respondents nor any persons on their behalf shall
remain present at the venue of access during the
access/visitation and further they shall not obstruct such
access/visitation;
D] The Counselors to file reports of the supervised
access before the Family Court, as far as possible within
seven days from respective access dates. The Family Court
shall be at liberty to furnish copies of such reports to the
parties;
E] Upon receipt of four reports from the Counselors by 7
April 2016, the Family Court after afford of opportunity of
hearing to the parties and if deemed necessary by
interviewing the children, dispose of the motion for interim
custody, access and visitation rights, in accordance with law,
latest by 30 April 2016;
F] In order to facilitate access/visitation as granted by this
order, the Family Court is empowered to make
orders/directions from time to time particularly, in the matters
of venue, dates etc. The Family Court, will no doubt take into
consideration the academic and other schedules of the
children, so that they are affected in the minimum. The
parties shall be at liberty to apply to the Family Court, in this
regard;
G] The observations in this order are prima-facie and the
same are not be construed as reflection upon the conduct of
the either parties. The Family Court, which is seizin of the
matters, is therefore directed to dispose of the motions for
interim custody, access and visitation rights based upon the
material which may be placed before it and in accordance
with law;
H] Rule is disposed of in the aforesaid terms, in both the
petitions.
I] The Civil Applications are also disposed of in the
aforesaid terms.
J] All concerned to act on the basis of authenticated copy
of this order.
(M. S. SONAK, J.)
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