Holding

The paramount consideration of the child's best interests warrants that the mother retain exclusive custody, with visitation rights to the father and temporary custody to the father during the mother's foreign tours.

Summary

After a mutual consent divorce under the Hindu Marriage Act, 1955, the mother remarried a famous cricketer and sought exclusive custody of their 9‑year‑old daughter. The Family Court awarded custody to the father, but the Karnataka High Court reversed that decision, granting the mother exclusive custody with visitation rights to the father. Both parties appealed to the Supreme Court, which examined whether the mother’s remarriage, frequent foreign tours, and the step‑father’s influence warranted depriving her of custody, and whether the father’s unmarried status and lack of female household members affected his suitability. The Court found no evidence that the step‑father would brainwash the child and held that, at the child’s age, she required the mother’s care, especially as the mother was pregnant. Accordingly, the Supreme Court upheld the High Court’s order, modifying it to give the father custody during the mother’s foreign tours, while maintaining the mother’s exclusive custody and the father’s visitation rights.

Issues considered

Whether the mother’s remarriage to a celebrity and her frequent foreign tours justify depriving her of exclusive custody of the child.
Whether the father’s unmarried status and lack of female members in his household affect his suitability for custody.
Whether the step‑father poses a risk of influencing the child against the natural father.
Whether the High Court’s generalization that mothers are always preferable custodians is legally sound.
What custody and visitation arrangements best serve the child’s best interests under the circumstances.

Legislation cited

Hindu Marriage Act, 1955

Subjects

child custodydivorceHindu Marriage Actbest interests of childvisitation rightsstepfatherremarriageforeign tours

Judgment

KUMAR V. JAHGIRDAR A
V.

CHETHANA RAMATHEERTHA

JANUARY 29, 2004

[SHIVARAJ V. PATIL AND D.M. DHARMADHIKARI, JJ.] B

Custody-Minor daughter-Rival claim of a divorced couple-Mother
re-married lo a cricket celebrity-Family Court gra/1/ing exclusive custody of
child lo father-High Court reversing the judgment of Family Court-Held, C
the judgment of High Court giving exclusive custody of the child lo the mother
and visitation rights to the natural fath{?r is just and proper in safeguarding
the interests of the child-Child being on advent of puberty, required more
care and attention of the mother more so when father has no female members
living jointly with him-Direction given for custody of child to natural father
during foreign visits of the mother. D
.!11dgme111--General observation by High Court in favour of mother as
pare/1/ to be always preferable to the father to retain custody of child-Held,
such generalization in favour of the mother should not have been made.

After the divorce obtained by mutual consent under the provisions E
of Hindu Marriage Act, 1955, a dispute arose between the parties with
respect to their ri\'al claim to exclusive custody of their daughter. After
obtaining divorce, respondent-wife remarried a famous cricketer of
national and international repute. Shortly thereafter, respondent filed an
application in the Family Court seeking exclusive custody of the child. The F
Family Court rejected her application directing that the exclusive custody
of the child be given to the natural father with only right of visitations to
the mother. The dispute went up to Supreme Court which made an interim
arrangement allowing respondent-mother to retain custody of the child
with visitation rights to the father with directions to the Family Court to
decide the case expeditiously. The Family Court granted exclusive custody G
of the child to father with only right of weekly visitations to the mother.
In appeal, High Court reversed the judgment of the Family Court and
directed that the mother should continue to retain exclusive custody of
the child with visitation rights to the father. Hence the present appeals.

1203 H
r
""'
iii
1204 SUPREME COURT REPORTS [2004] I S.C.R.

A On behalf of the appellant-father, it was contended that the ....
respondent was re-married to a cricket celebrity and had a style of life
which required frequent foreign tours, exposure to public life and media;
,,.
I
that there was possibility of the child being brain-washed to keep distance
from the natural father and that the father had remained unmarried with
the sole aim to bring up his child in a congenial atmosphere of love and
B affection.

On beha If of the respondent, it was contended that the past conduct
of the wife and her second husband throughout the proceedings in these
cases belies the apprehension of the former husband that the child's mind

c would be poisoned against him.

Disposing of the appeals, the Court

HELD: 1.1. On the paramount consideration of best safeguarding
the interest of the child, the judgment of the High Court giving exclusive
custody of the child to the mother and visitation rights to the natural father
D
deserves to be maintained with little modification. The child is, at present,
9 years of age and on advent of puberty. This is the age in which she
requires more care and attention of the mother. Mother, at this age of
the child, deserves to continue to keep the custody of the female child. She
is reported to have given up her service and now leading life of a house-
E wife. It is reported that the wife is presently on the family way. The
prospect of arrival of the second child in the family of the wife is another
circumstance which would be in favour of the present child. Further, the
petitioner lives alone with his father. There are no female members living
jointly with him to ensure constant company, care and attention to the
female child. The natural father is a busy stock Broker and it cannot be
F
said that in the course of his business, he has not to remain out of residence
for attending his office and other business engagements.
-"\

.'
11210-C-H; t211~AI

t.2. The apprehension expressed against the second husband that he
G might poison the mind of the child and create ill-will towards natural
father is not borne out from the evidence on record. On the contrary the
second husband in his deposition has made statement evincing a very
cooperative and humane attitude on his part towards the problem of the
estranged couple and the child. The apprehension expressed against the
second husband is without foundation. The visitation rights given to the
H natural father, in the present circumstances, also do not require any
KUMAR V. JAHGIRDAR ,.. CHElllANA RAMATHEERTHA [DHARMADH!KARI, J.] 1205

modification. To make visitation rights of natural father effective and A
meaningful for proper growth of the child, active cooperation of both the
parents and her step father is expected. (1211-A-C; 1211-D-FJ

t.3. Since the mother of the child is married to a famous cricketer,.
as and when she leaves the country on tour with her husband during school
days or vacation period of the child without taking the child with her, B
instead of leaving the child to the care and custody of some other member
of the family, the custody of the child during her absence from her home
shall be given to the natural father. (1211-F-G(

2. The general observations and comments made by the High Court C
in favour of mother as parent to be always preferable to the father to
retain custody of the child is not subscribed to. Such generalization in
favour of the mother should not have been made. (1210-A(

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 619-620
of 2004.
D
From the Judgment and Order dated 27.1.2003 of the Karnataka High
Court in M.F.A. No. 2940 of 2002 C/W 2939/2002.

S.S. Javali, V. Tarakram, P.R. Ramasesh, Ms. Vandana Jalan and S.
Krishna Kumar for the Appellant.
E
Gopal Subramanium, Dayan Krishnan, Nikhil Nayyar and Gautam
Narayan for the Respondent.

The Judgment of the Court was delivered by

DHARMADHIKARI, J. Leave granted. F

In these two appeals, the subject matter of dispute between the married
couple, now separated by decree of divorce obtained on mutual consent
under the provisions of Hindu Marriage Act, 1955, is their rival claim to the
exclusive custody of their daughter Aaruni who is now little above 9 years G
of age and is prosecuting her education in a well-known school in the city
of Bangalore where the parties reside.

After obtaining divorce on mutual consent, the wife Smt. Chethana
Ramatheertha is re-married to Mr. Anil Kumble, a Cricketer of national and
international repute. The Family Cou1t of Bangalore by its judgment dated H
1206 SUPREME COURT REPORTS [2004] I S.C.R.

A 20.4.2002, after considering the evidence led by the parents of the child, ;._
came to the conclusion that as the wife is re-married to a famous cricketer
and is leading a different style of life involving frequent tours with her
second husband for attending cricket events, there is likelihood of child
developing distance and dislike for her natural father. The exclusive custody
B of the child was directed to be given to the natural father with only right of
visitations to the mother on every week on Sunday berween I0 A.M. to 8
P.M. and to keep the child with her overnight on two Sundays in a month
with prior intimation to her former husband.

The High Court, in appeal, by its impugned judgment dated 27.1.2003,
C has, however, taken a different view and reversed the judgment of the Family
Court. On the basis of evidence on record, the Division Bench of High Court
has formed an opinion that in the absence of compelling reasons and
circumstances, the mother cannot be deprived of the company of the child to
the detriment of the interest of the child. The High Court, therefore, set aside
the judgment of the family court and directed that the mother should continue
D to retain exclusive custody of the child with visitation rights to her former
husband. The former husband is allowed to keep the child on week ends
either on Saturday or Sunday from morning till evening and he can also be
with the child during half the period of vacations in the school. The stay of
child with each of them during half of the vacations, is to be shared by the
E two parents under mutual agreement. The father is also allowed to visit the
child as and when he likes with the prior intimation and mutual arrangements
with the mother. The parties are also given liberty to seek necessary
modifications in the arrangement evolved by the High Co1111.

For deciding the controversy regarding the custody of the child, only
p few more facts are relevant and required to be stated.

The parties were married in the year 1986 at Mysore and had a married
life for more than 12 years. The child-Aaruni was born to them on 07.12.1994.
When the child was little about two years old, the wife took a job in Trans
Oceanic Travels. Their marriage broke down in the year 1998 when the wife
G left her matrimonial home and sent a notice through her lawyer that she was
unwilling to live with her husband. On a joint petition, tiled by the parties
in the Family Court for dissolution of marriage by mutual consent, a decree r
of divorce was passed on 17.4.1999. The separated parents, in accordance
with the conditions of divorce by consent, agreed to their appointment as
H joint guardians with periodic custody of the child. They also agreed to keep
KUMAR V. JAHGIRDAR v. CHETHANA RAMATHEERTHA [DHARMADHIKARI, J.] 1207
the child alternatively in every week. As per tlie mutual arrangement agreed A
~

"" ' • between the couple, the wife took custody of the child for a week in the year
1999. She soon thereafter got re-married to famous cricketer Mr. Anil Kumble
on 1st July, 1999 and went out of the country with her second husband
leaving the child under the custody of her former husband. On return from
abroad with her second husband, she filed an application in the Family Court
on 12.8.1999 seeking exclusive custody of the child. The Family Court rejected B
her application and the High Court, in revision, only granted liberty to the
parties to approach the Family Court for alteration or modification of the
terms of consent decree of divorce. Thereafter, the wife moved a petition
again to the Family Court for altering the conditions of divorce. During
pendency of those proceedings, with the permission of the Family Court, she c
took the child with her while on tours with her second husband.

A counter application was filed by the present petitioner/her former
husband Shri Kumar v. Jahgirdar for exclusive custody of the child on the
ground that he being the natural guardian and having remained unmarried
with sole aim to bring up the child in congenial atmosphere was better suited D
to be entrusted with her custody. It was stated that the re-marriage of the wife
is detrimental to the welfare of the child.

The wife from her side filed repeated applications in Family Court
seeking permission to take the child to foreign countries on tours with her
second husband. The Family Court granted such permissions but on certain E
conditions.

The wife went up by revision petition to the High Court and the High
Court directed that the child should be placed in the custody of mother for
a continuous period of one year. When the present petitioner/her former
7- husband appealed, this Court, after hearing the learned counsel appearing for
F
the parties, by order dated 18.4.2003 made an interim arrangement pending
final orders on the pending applications of the parties before the Family
Court, Bangalore. i:he mother was allowed to retain custody of the child with
visitation rights granted to the former husband every week on· Saturday and
Sunday. It was also directed that during pendency of the cases before the G
family court, if the mother is required to go out of the country, she will not
carry the child with her but leave the child in the custody of her former
husband during her absence. The family court was directed to decide the case
within four months.

The family court in its judgment dated 20.4.2002 granted exclusive H
1208 SUPREME COURT REPORTS (2004) I S.C.R.

A custoay of the child to the former husband with only right of weekly visitations
to the mother on the grounds inter a/ia that the mother is re-married to a
famous cricketer whereas the fonner husband is still unmarried and his nature
of business as a Stock Broker is such that he is able to give required attention
to the rearing of the child. The family court also, on the basis of apprehensions
raised in evidence on behalf of the fonner husband, came to the conclusion
B that custody of child with natural father would rule out possibility of attempts
on the part of the mother and her second husband to induce or create ill-will
in the mind of the child towards her natural father. The family court also
recorded that during long periods when the girl child lived with her natural
father, she herself expressed satisfaction and happiness.
c The wife appealed against the judgment of the family court to the High
Court. The child was interviewed twice by the Hon'ble Judges of the High
Court on 20.11.2002 and 05.12.2002. On the basis of interviews with the
child who is school going and aged about 9 years, the High Court recorded
in its judgment that the child expressed no dislike or negative feelings towards
D any of her natural parents or her step father. The High Court after examining
the evidence on record and interviewing the child, came to the conclusion
that in the absence of any compelling or adverse circumstances, the natural
mother cannot be deprived of the exclusive custody of a growing female
child. The judgment of the family court has been upset by giving exclusive
E custody of the child to the natural mother with visitation rights on week ends
to the natural father on timings mentioned in the order. Aggrieved by the
order of the High Court, the former husband is, in appeal, before us.

Learned senior counsel, Shri S.S. Javali appearing on behalf of the
petitioner/former husband took great pains by taking us through the record
F of the case and particularly the relevant parts of the depositions of the estranged
couple and the second husband of the wife. He severely criticised ce11ain
general remarks and statements made by the High Court in the impugned
judgment such as that 'mother has an absolute right to keep company of the
child unless deprivation of it is required for compelling reasons'. It is argued
that such an erroneous approach on the part of the High Court, has resulted
G in upsetting a just and very well-reasoned judgment of the family court.

From the arguments advanced on behalf of the former husband, what
we have been able to gather as more important circumstances set up against
allowing the wife to retain the custody of the child inter alia are that the wife
H is re-married to a cricket celebrity and has a style of life which requires
KUMAR V. JAHGIRDAR '" CHETHANA RAMATHEERTHA [DHARMADHIKARI, J.] J 209

frequent foreign tours, exposure to public life and media. There is also A
possibility of the child being brain-washed to keep distance from the natural
father. On the behaviou'r of the child during her interviews on two occasions,
as has been recorded by the High Court Judges, submission made is that it
might have been so due to psychological counselling given to the child. It is
stated that during one of her interviews, a psychologist was found to be B
accompanying her to the court before the child entered the Chamber of the
Judges for interview. On behalf of the wife, the learned counsel stoutly
denied any such happening during hearing in court.

On behalf of the former husband, learned counsel then very strenuously
submitted that his client has remained unmarried with one single aim to rear C
and bring up his child in a congenial atmosphere of love and affection which
he alone can guarantee. In the present status and style of life of his former
wife, it is submitted that the former husband was rightly held by the family
court to be a preferable parent to keep custody of the child. The father is also
financially well-off and has already acquired movable· and immovable
properties as also deposited cash in the name of the child to ensure best of D
care and education to her.

We have also heard learned senior counsel, Shri Gopal Subramanium
appearing on behalf of the wife, who has supported the impugned judgment
of the High Court and submits that the past conduct of the wife and her
second husband throughout the proceedings in these cases belies the E
apprehension of the former husband that the child's mind would be poisoned.
against him. The apprehension is stated to be completely baseless and
imaginary. Learned counsel assures on behalf of Mr. Anil Kumble, the second
husband of the wife, that he would continue to extend same love to the child
and cooperation to the natural parents as he has been doing throughout in the F
!
past so that the child gets the best of care, affection and education for her
proper upbringing. It is submitted that as has been desired by the High Court
with the conditions imposed in its orders, the parties would faithfully and
sincerely continue with the existing arrangement without any detriment to
their mutual interests and the interest of the ·child.
G
After hearing the learned counsel appearing for the parties at sufficient
length and having bestowed our careful consideration to the observations and
conclusions reached by the family court and the High Court in their respective
judgments, we do not find any ground to substantially upset the judgement
of the High Court containing the arrangements made therein for the custody H
1210 SUPREME COURT REPORTS [2004] I S.C.R.

A of the child and the rights of visitation granted to tl]e natural father.
We make it clear that we do not subscribe to the general observations
\_
and comments made by the High Court in favour of mother as·parent to be
always a preferable to the father to retain custody of the child. In our considered
opinion, such generalisation in favour of the mother should not have been
B made. We, however, do not find that the judgment of the High Court is based
solely on one consideration that between two parents, the mother always can
claim superior right to retain the custo«;ly of th< child. The High Court has
taken into consideration all other relevant facts and circumstances to come to
the conclusion that female child of growing age needs company more of her
C mother compared to the father and remarriage of the mother is not a
disqualification for it. The conclusion of the High Court seems to be just and
proper in safeguarding the interest of the child.

Without going into the allegations, counter allegat!ons and
misapprehensions expressed against each other, on the paramount consideration
D of best safeguarding the interest of the child, in our opinion, the judgement
of the High Court giving exclusive custody of the child to the mother and
visitation rights to the natural father deserves to be maintained with little
modification for the following reasons :-

I. The child is, at present, 9 years of age and on advent of puberty.
E This is the age in which she requires more care and attention of
the mother. Mother, at this age of the child, deserves to continue
to keep the custody of the female child. She is reported to have
.
given up her service and now leading life of a house-wife. The
progress report of Aaruni from the Sophia High School, Bangalore,
indicates that she is very good at studies and has a bright
F educational c~reer.
2. It is reported that the wife is presently on the family way. The
prospect of arrival of the second child in the family of the wife
is another circumstance which would be in favour of the present
child.
G
'~- The petitioner lives alone with his father. There are no female
members living jointly with him although he may have female
relations in the city but that would not ensure constant company, ('

care and attention to the female child.

H 4. The petitioner/natural father is a busy Stock Broker allegedly
..

KUMAR V. JAHGIRDAR 1•. CHETHANA RAMATHEERTHA [DMARMADHIKARI, .I.] 1211

carrying on his business with aid of on-line computer but it cannot A
be said that in the course of his business, he has not to remain out
of residence for attending his office and other business
engagements.
5. The apprehension expressed against the second husband that he
might poison the mind of the child and create ill-will towards B
natural father is not borne out from the evidence on record. On
the contrary, the second husband in his deposition has made
statements evincing a very cooperative and humane attitude on
his part towards the problem of the estranged couple and the
child. We find that apprehension expressed against the second c
husband is without foundation. The parents of the child have
separated by mutual consent without making any vicious allegation
against each other. They also agreed under the express terms of
the consent decree of divorce to take responsibility of bringing up
their child as her joint guardians. This gesture of decency and
cooperation in jointly looking after the child has to continue. In D
this mutual agreement of separated couple, on behalf of second
husband, it is assured to us that he would continue to give his
unreserved cooperation and help and would do nothing as to spoil
the relationship or intimacy of the child with the natural father.
6. The visitation rights given to the natural father, in the present E
circumstances, also do not require any modification because with
the passage of time, the growing child should eagerly wait for the
company of his father as a happy and enjoyable moment rather
than treat it as a part of empty ritual or duty. To make visitation
,,. rights of natural father effective and meaningful for proper growth
F
of the child, active cooperation of both the parents and her step
father is expected and we hope it would not be found wanting
from any one of them.
7. Since the mother of the child is married to a famous cricketer, as
and when she leaves the country on tour with her husband during
G
school days or vacation period of the child without taking the
child with her, in stead of leaving the child to the care and custody
of some other member of the family, the custody of the child
during her absence from her home shall be given to the natural
father.
H
,.

1212 SUPREME COURT REPORTS (2004] I S.C.R.

A With the above observations and modification, we maintain the judgment
of the High Court. The two appeals are, thus, disposed of. As all the parties,
before us, are highly educated, cultured, of modern outlook, well-off and
having so far conducted themselves decently and courteously towards each
other, we hope, in future as well they will continue same attitude and conduct
B for maintaining their cordial relationships and extend full cooperation in
safeguarding the interest of the child in best possible manner.

Looking to the nature of the case and the position of the parties, they
are directed to bear their own costs and expenses incurred in these appeals.

M.P. Appeals disposed of.

(