Q: Delineate the citation of Mausami Moitra Ganguly v. Jayant Ganguly ?

Ans: 

Case study - Petition for child-custody under the Guardians & Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956

In Mausami Moitra Ganguly v. Jayant Ganguly, after Mausami Ganguly's petition seeking divorce was allowed ex parte in September 2002, she filed a petition under sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad in April 2003 seeking a direction against her husband, Jayant Ganguly, to hand over the custody of the child to her and for a declaration in her favour that she be declared as the lawful guardian of her minor son, Satyajeet.

Her petition was contested by her husband (the minor's father), Jayant Ganguly. He alleged that having left the minor when he was less than three years of age, Mausami had no emotional bond with the child, and after leaving Allahabad, she had neither talked to the minor nor had enquired about his welfare. He alleged that being the natural guardian of the child, he was capable of and was, in fact, looking after the welfare of the child. He averred that the child was studying in a prestigious school at Allahabad for which he was paying a fee of Rs. 25,000 per annum. He further stated that he had also nominated the minor in his insurance policy. Supporting his argument about welfare of child, he sought to assure the Court regarding his financial stability by stating that he owned a house, telephone and a motor car. On the other hand, he contended that Mausami had no house of her own and was living with her mother and brother in a two-room flat at Calcutta.

Evidence was led by both parties. In support of her contentions, while Mausami examined herself and two doctors, Jayant examined himself and two of his neighbours.

While observing that the welfare and interest of the minor is of utmost importance in determining which of the parents should be granted custody, the Family Court, after examining the evidence on record, found the father to be unfit to act as a guardian of the minor child. The Court felt that the mother, Mausami, had never neglected her child but had to leave Allahabad to save her life. According to the Family Court, Mausami's several applications seeking interim she had affection for her child. The Court observed that while she was a highly custody moved during the pendency of the main custody application showed that qualified teacher drawing a salary of Rs. 22,000 per month, the father was only  a private contractor without a regular source of income and though the child was studying in a prestigious school in Allahabad, there was lack of constant care and protection for the child in his house. Finding the testimony of the mother and her two witnesses to be credible, the Family Court allowed the petition declaring the mother to be the lawful guardian of her minor son, and the father was directed to hand over the custody of Satyajeet to her within one month of the date of judgment.

Aggrieved by the Family Court's judgment, Jayant Ganguly preferred an appeal before the High Court. During the pendency of the appeal, vide an Order passed in November 2005, the High Court as an interim measure granted the interim custody of the child to the mother. The High Court obtained opinion of the Director of Psychology, Allahabad, who had examined the mother, the father and the child, and had also talked to the child on every date of hearing. In the proceedings held in May 2006, in response to the question as to whether he would like to stay with his father or mother, the child stated that he would prefer to stay at Allahabad as it is his birthplace and his mother should come and stay with him at Allahabad. The High Court gave significant weight to the fact that the child had stated so despite his living with his mother since November 2005 under the interim orders of the High Court. The High Court found that while the father was financially sound and able to cater to all the needs of the child for his development, the mother was unable to provide the same since she was living all alone. The High Court further found that the child was not able to reconcile with the fact of being uprooted from Allahabad and denial of love and affection from the father, and also that the answers to the questions put to the child indicated that the child wanted to study at Allahabad. Giving regard to this, the High Court concluded that the welfare and development of the child and his future would be best served at present at Allahabad in the hands of the father. Accordingly, the High Court, in February 2007, set aside the order passed by the Family Court and granted the child's custody of to the father, with the following, inter alia, directions:

1. The father shall make arrangement for the child to continue his studies in best schools of Allahabad and will ensure the development and welfare of the child in the best way possible.

2. The mother shall be at liberty to visit the child either in the father's house or in the premises of a mutual friend or at an agreed place at any point of time and the father shall not object to her meeting with the child.

3. The father will allow the child to live with the mother during school vacations or on appropriate occasions.

4. The child shall be allowed to attend and participate in family functions/ festivities subject to his school attendance and examinations etc. which are held in the mother's family or during any other occasions as jointly agreed to by both, father and mother.

The mother, aggrieved by the High Court's order, challenged it before the Supreme Court. During the appeal, the Supreme Court directed the mother and father to remain present in the Court in person, and also directed the father to bring the child with him. In January 2008, both the parties and the child appeared before the Supreme Court, and before hearing the case, the Court interviewed the child in chambers. The Court found that he was intelligent enough to understand the facts and circumstances in which he was placed and could comprehend matters and visualize his own well-being. The Court found that the child seemed to have no complaint against his father, and he had explicitly stated before the Court that he was not inclined to go with his mother and would like to stay with his father and continue his studies at Allahabad where he has quite a few friends.

The Supreme Court then heard the case. The short question for consideration was whether the circumstances as highlighted by the parties warrant the transfer of custody of the child from the father to the mother. The Supreme Court observed that while determining the question as to which parent should be given custody of a child, the paramount consideration is to be given to the welfare and interest of the child, and not the rights of the parents. It observed that the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (section 17) or the Hindu Minority and Guardianship Act, 1956 (section 13) also provide the welfare of the child as a predominant consideration. It held that the question of welfare of the minor child must be considered giving regard to the relevant facts and circumstances, and each case must be decided on its own facts. It further observed that although the father, being usually the working member and head of the family, is presumed by the statutes to be better suited to look after the welfare of the child, the Court must examine the facts and evidence on record in each case on its own merits, to see to the welfare of the child while determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. While relying upon Halsbury's Laws of England (Fourth Edition, Vol. 13), it observed that the law pertaining to the custody and maintenance of children strongly indicates that Courts must regard the welfare of the minor as the first and paramount consideration, while determining the question of custody of such minor. Courts must not unnecessarily compare the worthiness of claims of the parents and base its decision on whether the claim of the father is superior to that of the mother, or vice versa. In relation to the custody or upbringing of a minor, the rights and authority of mother and father are equal and are exercisable by either without the other.

Ultimately, the Supreme Court dismissed the appeal on the following basis: 

1. During the course of hearing, upon hearing the Court's suggestion on one occasion that it would be better if the child could stay with his mother for some more time, he had started crying and whining and showed reluctance to go with the mother, and upon watching his reaction, the Court had to drop the proposal.

2. There was nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. Having interviewed the child, the stand of the mother that the father does not have sufficient time or resources to look after the welfare of the child was held to be not credible.

3. The mother was a teacher employed in a school at Panipat, where she had shifted from Chandigarh. Prior thereto she was teaching in some school at Calcutta. She was living all alone. Except for a short duration when the child was with the mother, he had been living and studying in Allahabad in a good school and had a small group of friends there. At Panipat he would be in an entirely new environment as compared to Allahabad. The stability and security of the child is also an essential ingredient for development of the child's talent and personality. The dislocation of child from Allahabad, where he had grown up in sufficiently congenial surroundings, would not only impede his schooling, but also cause emotional strain and depression on him.

4. Under these circumstances, the child's interest and welfare would be best served if he continued to be in the custody of the father.