Author Details:-

MONISHA KHATUN
UNIVERSITY OF CALCUTTA
LJD LAW COLLEGE
BA.LLB- 1^ST YEAR

FRANCIS JOSEPH S/O THOTTAPALLIL JOSEPH VERSUS SHOBHA FRANCIS JOSEPH
2014 SCC ONLINE GUJARAT 14853
SPECIAL CIVIL APPLICATION NO.7483 OF 2014
DECIDED ON 9TH DECEMBER, 2014

Facts of the Case:

The facts stated briefly are that Francis Joseph (petitioner) and Shobha Francis Joseph (respondent) are husband and wife. The marriage of Francis Joseph and Shobha Francis Joseph was solemnized on 25.05.2004 in Goa and out of the wedlock, a daughter named Diya was born on 18.08.2005. After some time the couple separated, and the mother filed a case under section 7 of the Guardian and Wards Act, 1890, seeking sole custody of Diya. The father contested the case and sought visitation rights and shared custody. Mr. viral shah, a learned advocate for the petitioner submitting a note that the petitioner being father and natural guardian of the minor child, has natural love and affection for his child and would like to see that his relationship with his daughter is maintained.
However, the respondent claimed that the petitioner is short-tempered and abusive as well as morally weak and lacks righteous character and therefore, apart from the overall growth, welfare and development of the child, visiting him is not good for the psychological and emotional well-being for the minor child.

Issues Presented:

1. Custody of Diya: Who should have primary custody of Diya, the mother or the father?
2. Visitation rights: What visitation rights should the non-custodial parent have?
3. Allegations against the father: Should the mother’s allegations against the father (short-tempered, abusive, and morally weak) affect his custody and visitation rights?
4. Child’s wishes: Should Diya’s wishes and feelings be considered in determining custody and visitation arrangements?
5. Parental fitness: Is the father unfit to care for Diya due to his alleged behavior and lifestyle?
6. Shared parenting: Should the court consider shared parenting or joint custody arrangements?
7. Child’s well-being: What arrangement is in the best interests of Diya’s physical, emotional, and psychological well-being?

Arguments by Petitioner (Father):

The father argued that-

• As Diya’s father, he has a fundamental right to be involved in her life and upbringing.
• He claims that the mother’s allegations against him are false, motivated by malice, and intended to alienate him from Diya.
• He seeks shared parenting or joint custody arrangements, allowing him to be actively involved in Diya’s life.
• He requests regular visitation rights to maintain a meaningful relationship with Diya.
• He has been actively involved in Diya’s life, and his involvement should be recognized and respected.
• He argues that his involvement is in Diya’s best interests, and that she would benefit from a loving relationship with both parents.
• He claims that there is no evidence to support the mother’s allegations, and that he is a fit and capable parent.
• He has a right to a relationship with his daughter, and the court should ensure that this right is protected.

Arguments by Respondent (Mother):

The mother argued that-

• She has been Diya’s primary caregiver and has a deeper bond with her.
• Granting custody to her would provide stability and consistency for Diya.
• She alleges that the father’s behavior is unacceptable and would be detrimental to Diya’s well-being.
• She claims that the father’s involvement would cause emotional harm to Diya.
• She argues that the father is an unfit parent due to his alleged behavior and lifestyle.
• She claims that Diya does not want to live with her father or have a relationship with him.
• She has made significant sacrifices for Diya’s upbringing and should be recognized as the primary caregiver.

Relevant Legal Provisions:

1. Guardian and Wards Act, 1890–
This Act provides for the appointment of guardians for minor children and outlines the duties and responsibilities of guardian.

Section 7: Power of the Court to make orders as to guardianship-

• Where the Court is satisfied that it is for the welfare of a minor that an order should be made, Appointing a guardian of his person or property or both, or declaring a person to be such a guardian the Court may make an order accordingly.

Section 17: Matters to be considered by the court in appointing guardian-

• In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
• In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
• If the minor is old enough to form an intelligent preference, the Court may consider that preference.

2. Hindu Minority and Guardianship Act, 1956–
This Act governs the guardianship and custody of minor children in India.

Section 6: Natural guardians of a Hindu minor- The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property, are

• In the case of a boy or an unmarried girl the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

Section 13: Welfare of minor to be paramount consideration-

• In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
• No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

3. Civil Procedure Code, 1908–
This Code governs the procedure for civil court proceedings, including custody disputes, ensuring a fair and just process, and providing guidelines for courts to follow in determining custody and visitation arrangements.

4. Supreme Court guideline on custody and visitation rights.

Decision of the Court:

The court expressed that the minor daughter and her parents to be examined by child psychiatrist or psychologist. The court also told the parties to suggest the name of the doctor. The petitioner has suggested the names of Dr. khushnuma Banaji and Dr. Hansel Bhachech and the respondent has suggested the name of the Dr. Ronak Pandit and Kashiba Children Hospital.
Learned counsel for the petitioner requested for the examination by one of the said two doctors at Ahmedabad, and the respondent requested to do the examination at Baroda because the respondent and her 9 years old child are resident of Baroda. It will not possible for them to go all the way to Ahmedabad for the examination and the requested of the respondent appears to be reasonable. The respondent has no professional relations with Dr. Ronak Pandit in any matter.
The queries for the doctor is requested to dispatch the report in a sealed cover and dispatched to Dr. Ronak Pandit by registry and the cover shall be opened only by the doctor. After the examination of the child and parents, the doctor is requested to dispatch the report in a sealed cover to the registry of this High Court.

After the examination the Deputy Register of the high court stated the interaction specially, the petitioner and Diya –

1. As per the interaction with Diya, it found that neither she has been physically or mentally ill-treated by her father or any of his family members nor she has been sexually abused while her stay with her father Francis Joseph during the years.
2. Also Diya stated very clearly that she does not want to go back to Goa because she is enjoying with her mother. She is happy and adjusted. She gave this responses very clearly and maturely not under any one’s pressure.
3. Diya did not have any wrong feelings for her father but she does not want to stay with him as she wants to stay with her mother as she missed her mother all these years.
4. The behavior of her mother is full of love and affention and Diya is very much happy with her mother.
5. After talking to the father, it was found that he seems to be quite concerned about Diya , when she was with him, he has taken care about her well-being, may it be her academics, leisure time activities, outings and picnics.
6. Taking into consideration the emotional state of the father, he should be allowed visiting right.
7. Let Diya decide upon whether she should want to meet her father when he comes to meet her.
8. Personally, the child should not be deprived of the love and affection from both the parents. As Diya may not realize now but after some years she may feel the lack of and affection from the father.

The court is of the view that at present Diya appears to be happy with her mother and having regard to the facts and circumstances of the case, the child need not to be disturbed and pressurized to meet her father, when she is unwilling to do so.

Important Case Laws:

• Gaurav Nagpal vs. Sumedha Nagpal AIR 2009 SCC 557
  This is a landmark judgement where the supreme court of India granted custody of a child to the father, considering his stability and ability to provide a better environment, while also granting visitation rights to the mother, emphasizing that the child’s welfare is the paramount consideration in determining custody, and prioritizing the child’s best interests over the parent’s rights.
• Yashita sahu vs. The State of Rajasthan 20 January, 2020
  The case revolves around a custody battle over a child named Kiyara Verma. Yashita Sahu, the mother, and Varun Varma, the father, got married in India in 2016, and their child was born in the USA in 2017. The parents got separated, and the mother applied for an Emergency Protection Order in the Norfolk Juvenile and Domestic Relations District Court, USA. The court granted joint legal custody and shared physical custody of the child to both parents. However, the mother took the child to India, violating the court’s order. The father filed a petition for a writ of habeas corpus in the Rajasthan High Court, seeking the child’s return. The court directed the mother to return the child to the USA within six weeks. The mother appealed this decision, arguing that the child’s best interests would be served by staying with her in India. The Supreme Court ultimately ruled that the child’s welfare was of paramount importance and ordered the mother to return the child to the USA.
• Kamla Devi vs. The State of Himachal Pradesh and Ors. On 24 July, 1986
  This case is a notable judgment of the Himachal Pradesh High Court. The case involved a custody dispute over a minor child, where the mother, Kamla Devi, was seeking custody of her child from her estranged husband.
• Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari on 6 May, 2019
  The case of Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari on May 6, 2019, is a notable judgment of the Supreme Court of India. The case involved a custody dispute over a minor child, where the mother, Tejaswini Gaud, was seeking custody of her child.
• L. Chandran vs Venkatalakshmi And Anr. on 5 September, 1980
  This was a landmark case that established the paramount importance of a child’s welfare in custody disputes, recognizing the mother’s natural right to custody while also acknowledging the father’s rights, but making it clear that neither parent’s rights are absolute and that the child’s best interests should guide custody decisions.
• Selvaraj v. Revathi, 2023 SCC OnLine SC 1644
  This case involved a custody dispute where the supreme court of India granted custody of a minor child to the father due to the mother’s alleged neglect and instability, while also granting visitation rights to the mother to ensure the child maintains a relationship with both parents, prioritizing the child’s welfare and best interests, and emphasizing the importance of shared parenting and cooperation between parents.

Critical Analysis:

The case highlights the need for a balanced approach in custody disputes, considering both parent’s rights and the child’s well-being. A critical analysis of the Francis Joseph vs. Shobha Francis Joseph case reveals a multifaceted approach to determining custody, prioritizing the child’s welfare and best interests above all else. The court astutely recognized the mother’s primary caregiving role and the strong bond between her and Diya, granting custody to ensure stability and continuity in the child’s life. Simultaneously, the court acknowledged the importance of a relationship with both parents, granting visitation rights to the father and encouraging cooperation between the parties. Notably, the court considered Diya’s wishes and feelings, allowing her to decide whether to meet her father, demonstrating a child-centered approach that respects the child’s autonomy and emotional well-being. Furthermore, the court’s rejection of the mother’s unsubstantiated allegations against the father highlights the need for evidence-based decision-making in custody disputes. The use of expert evaluation by a child psychiatrist or psychologist adds a layer of depth to the court’s analysis, underscoring the complexity of custody decisions and the need for professional insights. Ultimately, the court’s approach aims to provide a nurturing environment that fosters Diya’s physical, emotional, and psychological growth. Additionally, this case sets a precedent for future custody disputes, emphasizing the importance of prioritizing the child’s needs and well-being. The court’s decision also highlights the need for parents to prioritize cooperation and communication in the best interests of the child. By doing so, the court ensures that the child’s welfare is protected and promoted, even in the midst of parental conflict. Moreover, the case demonstrates the importance of considering the long-term effects of custody decisions on the child’s life, rather than just focusing on short-term solutions.

Conclusion:

At the end, this case hinghlights the importance of prioritizing a child’s welfare and best interests in custody disputes. The court’s decision demonstrates a balanced approach, considering the child’s needs, the parent’s roles, and the importance of a relationship with both parents. The case emphasizes the need for evidence-based decision-making, respect for the child’s autonomy, and a willingness to involve expert opinions. Ultimately, the court’s goal is to provide a stable and nurturing environment for the child’s growth and development, serving as a guiding principle for future custody disputes. Ultimately, The case shows that the court’s main goal is to protect children’s well-being, even in difficult situations. By prioritizing Diya’s needs and well-being above all else, the court ensures that she receives the care, support, and love she deserves, setting a powerful precedent for future generations.

Sources and Links:

1. Guardian and Wards Act, 1890

2. Hindu Minority and Guardianship Act, 1956

3. Civil Procedure Code, 1908

4. https://indiankanoon.in

5. https://ijtr.nic.in

6. https://digiscr.sci.gov.in

7. https://www.indiacode.nic.in