Introduction: 1. Every time parents fight, the children get wounded. Here is another fight. To what extent can the Court save the child from the injury? Let us see. There is little law in custody battles, but a lot of life—mostly missed out or wasted.Facts: 2. The appellant, a Hindu by religion, married the respondent, a Jamaican born American of Indian origin. She is a Christian by faith and an American by citizenship. They met, fell in love, and married in the USA. It was in 2009. When they were living there, on 18 April 2012 they had a son (In matrimonial matters, names are nemeses. So I avoid the boy’s name). This case is about that child caught in the parental crossfire.3. When in the USA, the respondent was employed: She was a ‘tenured’ professor in the English Literature. After the child’s birth, the couple moved over to India. They first began to reside in Pune. There, a few months later, the appellant’s mother joined them. The mother-in-law’s addition seems to have provided the proverbial setting to the family’s problems. The respondent and the mother-in-law could not get along well; the respondent felt, as the Appellate Court puts it, that her mother-in-law usurped her role and responsibility as the child’s mother.4. So the couple shifted over to Goa. The record reveals that the house in Goa along with the adjoining flat belonged to the appellant’s family. Soon the mother-in-law, too, came to Goa. She occupied the neighbouring flat. The problems resumed.5. In January 2013, the respondent went to the USA, leaving the child with the appellant. She came back in April 2013 and filed proceedings under the Domestic Violence Act. It was in the Court at Mapusa. In those proceedings, she applied for an interim relief: the child’s custody. In fact, the trial Court granted that relief. But the couple seemed to have settled their difference, for the respondent withdrew the Domestic Violence proceedings and rejoined the appellant. In May 2015, the respondent once again went to the USA, again leaving the child with the appellant.6. This time, it was the appellant’s turn to seek judicial redressal. When the respondent was in the USA, the appellant filed Marriage Petition No. 59/2013, under Section 6 of the Hindu Minority and Guardianship Act 1956. It was before the Civil Judge, Senior Division, Margao. He alleged that the respondent had totally abandoned the child. He wanted to retain the child’s custody. Initially, the respondent’s USA address was shown, but in June 2013, the appellant changed the address and showed his own house as the respondent’s resident. She was served notice in that address.Procedural History: 7. To begin with, the trial Court, in January 2014, granted the child’s interim custody to the respondent, with visitation rights to the appellant. Aggrieved, the appellant moved this Court in Writ Petition No. 79 of 2014. In fact, this Court allowed the appellant to have the custody, with visitation rights to the respondent. Then, the respondent moved the Apex Court in Civil Appeal No. 1966 of 2015. Through a reported judgment, 17.02.2015, the Supreme Court restored the trial Court’s order: interim custody to the respondent, and visitation to the appellant.Trial: 8. During the trial, the appellant examined himself as PW1, besides examining others including a couple of doctors, as PW2 to PW7. On the other hand, the respondent examined only herself as RW1. None else.9. By the judgment, dated 06.03.2018, the trial Court dismissed the petition and allowed the respondent’s counter-claim. The trial Court declared that the child should be with the mother; of course, the father could have visitation rights from 3.00 pm. to 6.30 pm, every Tuesday and Thursday, and from 3.00 pm to 8.30 pm on Saturdays. The trial Court also required the respondent to reside with the child within the Court’s jurisdiction. If the respondent wanted to leave Goa or the country, she should secure the Court’s leave. She should also inform the appellant if she changed her place of residence.10. Aggrieved, the appellant filed the First Appeal No.20/2018 before the District & Sessions Judge, South Goa, Margao. The First Appellate Court framed the following points for determination:1. In whose custody does the child’s welfare lie?2. Does the impugned judgment and order call for any interference?11. The First Appellate Court, through its judgment dated 29 June 2018, refused to overturn the trial Court’s verdict. The First Appeal dismissed, the appellant has filed this Second Appeal—faced with concurrent findings.The Substantial Questions of Law: 12. While admitting the Second Appeal, this Court framed these substantial questions of law (rephrased):1. Have the courts below rendered perverse findings by holding that the respondent-mother is the better parent to serve the child’s interest and, therefore, retain him?2. Have the findings reached by the Courts below accord with the statutory mandate under Sections 6 of the Hindu Minority and Guardianship Act 1956, and Section 26 of the Guardianship and Wards Act 1890?3. Has the Appellate Court failed to consider Article 21-A of the Constitution of India and the Right of Children to Free and Compulsory Education Act 2009, besides the spirit of Article 51A (k) of the Constitution of India, while its granting the child’s permanent custody to the respondent-mother?Now, the appellant wants the Court to frame an additional substantial question of law. And that question is this:4. Has the First Appellate Court, while rendering the judgment, been influenced by the Apex Court’s observations in the Civil Appeal No.1967 of 2015? If so, has not the impugned judgment been vitiated? Submissions: The Appellant: 13. The appellant has filed written arguments, as required by the Court. It runs, as usual, into many pages. I will extract—not verbatim, though—his contentions to the extent relevant.(a) Despite the appellant providing the respondent with a comfortable house for her to live, she went on changing places in Goa and Mumbai, thus, dragging the child along all the while. It has affected the child's growth and education, besides resulting in a waste of money, which could have been used for the child's benefit, instead.(b) The respondent has no source of income, either here or in the USA. Without any job, she has depended on her parents, yet she lives beyond her means. On the other hand, the appellant commands a better financial position.(c) The respondent has not vaccinated the child, neglected the child’s oral care, gives unauthorised health supplements, not admitted him into a regular school—all these have resulted in the child’s stunted growth, both physically and mentally.(d) Often the respondent has left the child with strangers.(e) The respondent has taken the child beyond the trial court’s jurisdiction many a time, despite restrictive orders. This has affected the child and amounted to contempt, too.(f) The appellant's visitation rights have been disregarded, often.(g) The respondent suffers from behavioural adjustment disorder or bipolar; her health, thus, makes her a poor choice for parental care. (h) Though the child is a born Hindu, the respondent has cultivated in him Christian faith and practices.(i) The appellant’s separation from the child has snapped the father-son bond; the child has not been taught the Indian family values and morals.(j) The respondent has violated Article 21-A and the spirit of Article 51A (k) of the Constitution.(k) The child should not leave India, where “he has many friends and is very happy and comfortable in the environment prevailing in India, and thus has developed roots in the society in India.”(l) The child is attached to the grandmother.(m) The impugned judgment suffers from many factual inaccuracies, including one about the appellant’s bank statements.(n) The Appellate Court wrongly concluded the appellant's income.(o) The appellant has businesses and steady income to provide for the child.(p) The matter needs to be remanded to the trial Court.(q) "[A] few Indians are under the impression that America is a land of milk and honey", and that the child would have the best education in the USA. It is not true. That country distinguishes itself with gun culture and "fatherless families". The Respondent:14. The respondent, too, filed her written arguments—equally elaborate. She contends that the trial Court and the Appellate Court have considered all the issues thread-bare and rendered well-reasoned judgments. According to her, all the findings are factual, and there hardly remains a question of law for this Court to rule on.15. To elaborate, the respondent argues that to secure the child's custody, the appellant ought to have proved that he is the best and most fit person "to look after the overall welfare of the child". That means the appellant ought to have established "his character, nature, background, as well as his qualities, abilities" and so on. These criteria, according to her, include his education, his earning capacity, his present employment, whether he has a secure shelter. In other words, all these aspects would have indicated a stable life. Now, before this Court, the appellant must demonstrate that despite his establishing the above aspects, the courts below have erred in appreciating the appellants claim.16. In the same breath, the respondent has argued that for claiming the child’s custody, she has proved “her character, nature, qualities, abilities”, and so on. Those aspects include the respondent stresses, her education, earning ability, employment. They have kept her in better stead to claim the child’s permanent custody. The respondent has also, in addition, successfully refuted the appellant’s allegations.17. In the end, the respondent has pointed out that the learned trial Judge, who also "had the opportunity to meet with the respondent and the child during the proceedings of the Matrimonial Petition and watch the witnesses' demeanour during the cross-examination". According to her, the learned Judge has considered all these aspects and rightly concluded that the mother would better serve the child's best interests.18. Heard Shri Sharma, who argued pro se, and Ms. Caroline Collasso, the learned counsel for the respondent.Discussion: 19. A child was a chattel. Until a couple of centuries ago, that was how a child was regarded and treated. Not until the beginning of the 19th century did the common law courts specify in divorce cases who should have the child’s custody. It was father, by default. In Midsummer Night’s Dream, a father complains to the Duke that his daughter has spurned the suiter he brought and preferred someone else. The Duke tells the girl to fall in line: “To you, your father should be as a god, One that composed . . . By him imprinted, and within his power; To leave the figure or disfigure it.” (Shakespeare’s Midsummer Night’s Dream, Act I, Scene 1)(italics mine). Those were the medieval morals or manners. Not anymore.The First Question: 20. Have the courts below rendered perverse findings by holding that the respondent-mother is the better parent to serve the child’s interest and, therefore, retain him?21. This question, I may note, summarises all other questions. So its answer, too, must be the summation of the answers to those questions.Second Question:Have the findings reached by the Courts below accord with the statutory mandate under Sections 6 of the Hindu Minority and Guardianship Act 1956, and Section 26 of the Guardianship and Wards Act 1890?22. Let us examine these provisions. Section 6 of the Hindu Minority and Guardianship Act specifies a Hindu minor’s natural guardians. According to it, the natural guardians of a minor Hindu boy or unmarried girl are "the father, and after him, the mother". The proviso dealing with a child below five years does not apply here, nor are other contingencies. Indeed, literally read, Section 6 (a) is not only archaic but also anarchic. It almost sounds misogynic. It could have fallen foul of the Constitution had it not been for the judicial innovation and an interpretative device called ‘reading down’.23. In Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228), the Apex Court has read down the word ‘after’ in Section 6(a) to mean ‘in the absence of ’. The father’s absence from the minor's care can be “for any reason whatever”. Hence, in such situations, the mother can act as the natural guardian of the minor during the lifetime of the father, who would be deemed to be 'absent'.24. Now, let us examine Section 26 of the Hindu Guardianship and Wards Act, 1890. It concerns the removal of the ward from the jurisdiction. A guardian of the person appointed or declared by the Court shall not remove the ward from the limits of its jurisdiction. The removal may happen with the Court's leave and for the purposes the Court specifies. I am afraid this provision has no relevance here. Indeed, the appellant has accused the respondent of violating the trial Court's directive that she should not, territorially, leave that Court's jurisdiction. He has filed a couple of contempt cases, too, on that count. But that dispute cannot be tied to the custody case.The Third Question: Has the Appellate Court failed to consider Article 21-A of the Constitution of India and the Right of Children to Free and Compulsory Education Act 2009, besides the spirit of Article 51A (k) of the Constitution of India, while its granting the child’s permanent custody to the respondent-mother?25. According to the classical model, constitutional rights are deemed to regulate the relationship between the individual and the State, acting as a check upon State power, and enforceable "vertically" by the individual against the State. They are not supposed to apply to interactions or transactions between private parties. Such interactions are to be regulated by the common law or by legislatively enacted statutes (Horizontality under the Indian Constitution: A Schema, 24 May 2015, in the Blog: Indian Constitutional Law and Philosophy; https://indconlawphil.wordpress.com/2015/05/24/horizontality-under-theindian- constitution-a-schema (accessed on 17 September 2020). If constitutional rights can be enforced against private actors, it is horizontal. It obliterates— very unlikely though—the distinction between the State's constituent power and the legislative power.26. As we shall see, some constitutions are strictly vertical, and they are few and far between in the modern era. Some constitutions function in combination: partly vertical and partly horizontal. India’s is that. For example, Article 15 (2) (accessing shops, public restaurants, hotels and places of public entertainment, as well as places of the public resort); Article 17 (abolishing 'untouchability'); Article 23 (prohibiting human traffic and forced labour); Article 24 (child labour) do apply vis--vis private players, too. In fact, Ireland, Canada, Germany, South Africa are largely horizontal.27. Some constitutions are indirectly horizontal; for example, the USA Constitution. That said, there have been many instances when our Supreme Court has applied the Constitution with an indirect horizontality. To cite an example, we may quote R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632). To be clear, no constitution suffers a rigid stratification. Organic as it is, every constitution, in an ideally democratic society imbued with the rule of law, continues to evolve. If we take the vertical application and the horizontal application of a constitution as two extremes, the tilting in degrees—mostly through judicial and sometimes legislative measures—increases as the time passes by and as the nation evolves. Thus, all constitutions have come into being as vertical; then with the time, the tilting began towards horizontality; and it continues degree by degree, decision by decision and, perhaps, statute by statute.28. The appellant refers to Article 21A, besides the ‘spirit’ of Article 51A (k) of the Constitution of India. According to the appellant, though the boy is now over eight years, the respondent has not yet admitted him into any school. She allegedly homeschools him. In that context, the appellant asserts that the respondent’s action, rather inaction, in educating their child violates the child’s fundamental right under Article 21A of the Constitution.29. Article 21A of the Constitution mandates the State to provide free and compulsory education to all children between six and fourteen years in such manner as the State may, by law, determine. True, Article 21A enjoins the State with the duty of imparting quality education to the children between six and fourteen. But, to a limited extent, the Right of Children to Free and Compulsory Education 2009 (“RTE Act”) has applied this mandate horizontally: it covers unaided schools not receiving any kind of grants from the Government or the local authority (Section 2(n) (iv). So the RTE Act is another instance of constitutional horizontality through a statutory measure. But it has not tasked the parents with this constitutional command. Nor has it treated the parents as a “recognised school”, so to say.30. Homeschooling is said to be a progressive phenomenon around the world. Parents educate their children at home instead of sending them to a traditional public or private school. It can be for a variety of reasons. In fact, around the world, in most countries homeschooling is the parents’ legitimate option. If we remember that both the respondent and the child, on record, are American citizens, it pays to appreciate that in every American State homeschooling has been legalised. Some argue that this right originates from the First Amendment, and some others argue it is a guarantee under the Fourteenth Amendment of the American Constitution. It seems the latter is the stronger of the two to accommodate this right.31. According to Milton Gaither (Milton Gaither, Homeschool: An American History (2nd ed., Plagrave Mcmillan, 2017) 209), the US Supreme Court has long recognised parental rights as part of the constitutional right to privacy. For example, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), affirmed the constitutional right “to marry, establish a home, and bring up children.” Prince v. Massachusetts (1943) stated, “it is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Roe v. Wade and United States v. Orito (both in 1973) found there to be “fundamental” privacy rights in the domains of marriage, procreation, motherhood, child-rearing, and education in the Constitution. This right to homeschooling coexists with the State’s right to “compel attendance at some school”, though.32. Article 51-A (k) of the Constitution enjoins the parent or guardian to provide opportunities for education to his child or ward between six and fourteen years. It was added by the Constitution (Eighty-sixth Amendment) Act, 2002 and made effective from 2010. Whatever we have elaborated on earlier applies here, too. I fail to see how the respondent has violated the ‘spirit’ of this provision, if ever.33. We need not labour more on the homeschooling. The respondent, an American, came to India along with her husband and child. With the custody battle, she could not go back; nor could she establish a permanent home here, where she is doing odds and ends jobs to keep herself and her child afloat. Besides, the respondent herself is a trained teacher, having worked for more than a decade as an Associate Professor in American colleges. So the appellant cannot blow that issue up out of proportion.The Last Question: Has the First Appellate Court, while rendering the judgment, been influenced by the Apex Court’s observations in the Civil Appeal No.1967 of 2015? If so, has not the impugned judgment been vitiated?34. An interim custody order waded its way up to the Supreme Court. The Apex Court, as both parties report now, has rendered an elaborate judgment, which has been reported. Throughout, the appellant alleged that the courts below had been swayed by the observations in that judgment despite the Court's disclaimer. Up until now, I have not read the judgment for fear of facing the same allegation. Now, to answer this issue, I must read it.35. I have read Roxann Sharma v. Arun Sharma (2015) 8 SCC 318). Indeed, it is detailed with much judicial deliberation. But in the end, the Apex Court has held that “these orders are purely temporary in nature. The Civil Judge should decide the petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove”.36. After going through the judgments of the trial Court and the Appellate Court, I reckon they stand on their own. And I find little in them to conclude that they have been swayed by the Apex Court’s judgment. Thus, this issue, too, fails.How have the Courts below treated the Issues? 37. Because of the claim and counterclaim for custody, the trial Court has framed two issues: whether the appellant has proved that he is best suited to serve “the permanent interest of the child”. It has also framed the same question on the converse too, applying it to the respondent. Initially, the trial Court gave the interim custody to the respondent. This Court reversed it. But eventually, in February 2015, the Supreme Court restored the primary order. And in March 2018, the trial Court ruled in the respondent’s favour. It is a judgment of about 100 pages. True, pages do not make us presume perfection. But it is an exhaustive, painstaking judgment. Every issue has been considered and answered. And all the issues are questions of facts. Given the merger principle, we need not elaborate on that.38. In the appeal, the District and Sessions Court, South Goa, Magao, has treated the issues equally elaborately and analytically. The judgment, dt.29.06.2018, runs into 48 pages. Among others, it has first considered the financial capacity of the competing parents. It has found that the appellant has no stable source of income; he has no means of earning. Then, it has considered the educational qualifications. On the evidence, it has found that the respondent has been well educated, having worked in the USA as an Associate Professor or lecturer in English Literature. But the appellant does not seem to have had any college education. He is said to be a dropout. His claim to a degree in the UK was disbelieved, for he produced no proof.39. As to the residence, the Appellate Court has found that the appellant has been permissively occupying a relative’s flat. He has no abode of his own. On the other hand, the respondent, though an American, has taken on lease one house at Goa and another at Mumbai. It is to give the child a secure shelter at the place they are living and at the place they are frequenting.40. Indeed, the appellant has levelled disturbing allegations against the respondent about the child's health and nutritional needs. The boy is said to have been under weighing with malnutrition. He is said to have not received any inoculation. In short, the boy has stunted, perilous growth. Both the courts below have disbelieved the allegations. But, given the sensitivity and, perhaps, the paternal concern, I required the respondent to have the boy checked by a paediatrician of a Government hospital. And I permitted the appellant to be present during the child’s medical evaluation. The doctor, in fact, certified that the boy suffers from no health problems. He is said to be hale and hearty for his age. Normal.41. The appellant has also alleged that the respondent has been suffering from behavioural-maladjustment such as bipolar. The courts below have disbelieved it. The allegation of adultery, too, met the same fate—both on evidence or the lack of it. I must also note that the Courts below have dealt, essentially, with pure questions of fact. They marshalled the facts, applied the law, and rendered judgments. I see no ground to interfere with those concurrent findings of fact. Nor have I found any question of law, leave alone a substantial question of law that required intervention.Some more contentions the appellant raised before this Court: 42. “Though the child is a born Hindu, the respondent has cultivated in him Christian faith and practices”. True, we were born into a particular faith, by default. We practice it as a matter of choice. We may reach out to something else, too. No religion is a tool in the hands of either parent to indoctrinate. Education will give the boy discernment, that discernment discretion, and that discretion freedom. Grown-up, the boy will have all his choices open. And the father, as does mother, always plays a role. Noting is taken away from the appellant. Indeed, faith does not shackle us; it liberates us. It ought to.43. “The appellant’s separation from the child has snapped the father-son bond; the child has not been taught the Indian family values and morals”. This assertion applies on the converse too. Values are relative. In any society, the concept of family, rather than bestial individuality and procreation, is a cultural pinnacle.44. “The chi
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ld should not leave India, where “he has many friends and is very happy and comfortable in the environment prevailing in India, and thus has developed roots in the society in India.” We are in an age and at a stage where the Indian diaspora can influence another nation’s presidential outcome. We have moved, adapted, and excelled. Nothing stops us to come back to our roots if they lie here. So does the boy.45. The appellant’s next allegation is that “a few Indians are under the impression that America is a land of milk and honey", and that the child would have the best education in the USA, but it is not true. That country distinguishes itself with gun culture and “fatherless families”. A child’s custody is not a matter of cultural war or an inter-country comparison or competition. As (Felipe Fernandez-Armesto Felipe Fernandez-Armesto, A Foot in the River (Oxford University Press, 1st ed., 2015) 70)has said, each culture shapes itself. There is no universal pattern; therefore, there are no universal determinants. And, in fact, it may be impossible for us to appreciate the other cultural values without having grown up under their influence.A Word about the Appellant: 46. The appellant has prosecuted the case pro se. He has missed no adjournment. Nor has he allowed this Court to adjourn the matter to a day when he had his visitation. He is articulate, despite his lack of formal qualification, and conducted the case like a consummate counsel. He always stayed from morning to evening in the Court on every day’s hearing. His conduct is immaculate and commitment undoubted. But is it enough? I am afraid—not.47. Litigation cannot be one’s life mission. I understand the parental angst or agony. But there ought to be some let go. The courts below, as I have already noted, considered all issues thread-bare and rendered reasoned judgments—essentially on questions of fact. Especially, the trial Court had the vantage point to appreciate the party's conduct and commitment and the demeanour and all. It has ruled that the mother is better suited. Granted, every decision on custody or the residence order as the English call it, is subjective. Sometimes, the line is thin. The issues are loaded more with emotions than with law. In a custody battle between the parents, the courts’ choice is willy-nilly. Yet the courts have to draw a line somewhere. It is subjective.It’s not a game of winningIt’s a life of giving and forgivingWhy make room for grieving?All for your own child’s upbringing.Love knows how to part;And, indeed, that’s the best part.Result:I am constrained to conclude that this Second Appeal lacks merit and deserves dismissal. So I do. The Second Appeal is dismissed. But the visitation rights as provided by the trial Court and the Appellate Court remain undisturbed.No order on costs.