1973 (4) TMI 118 - SC - Indian Laws

Summary

Issues Involved:
1. Contempt of court for non-payment of maintenance.
2. Custody of the three children.
3. Access of either parent to the children in the custody of the other.
4. Modification of the maintenance allowance.

Issue-Wise Detailed Analysis:

1. Contempt of Court for Non-Payment of Maintenance:
The learned single Judge concluded that the husband could not be denied a hearing merely because he had defaulted on maintenance payments as directed by the matrimonial court. The unpaid amount could be recovered through execution proceedings.

2. Custody of the Three Children:
The primary consideration for the custody of the children was their welfare, not the rights of the parents. The learned single Judge observed that:
- Ajit alias Andrews (eldest child): He was doing well in school and progressing satisfactorily both mentally and physically. There was no reason to transfer his custody from the father to the mother.
- Maya alias Mary (second child): As she was about to attain puberty, the wife was considered more suitable for her custody to provide vigilant and affectionate care.
- Mahesh alias Thomas (youngest child): Being of tender years and requiring emotional security, he was also kept in the custody of the mother.

The appellate bench, however, reversed this decision, holding the father to be better fitted to be the guardian of all three children based on evidence and the principles under the Guardians and Wards Act, 1890. The bench emphasized the father's fitness and the statutory presumption in favor of the father's guardianship unless proven unfit.

3. Access of Either Parent to the Children in the Custody of the Other:
The learned single Judge provided specific directions for the access of each parent to the children:
- On the first Sunday of every month, Ajit was to visit the mother.
- On the last Sunday of every month, Maya and Mahesh were to visit the father.
- During summer vacations, Maya and Mahesh were to stay with the father, while Ajit was to stay with the mother during Dasara and Christmas vacations.

The appellate bench modified these directions, allowing the mother liberal access to the children, including taking the daughter during summer and Christmas vacations and several days every month.

4. Modification of the Maintenance Allowance:
The learned single Judge reduced the maintenance payable by the husband to the wife to Rs. 100 per month, effective from January 1, 1971, based on the wife's superior earning capacity. The appellate bench, however, concluded that the wife was financially well-off and the husband was struggling in his profession. Consequently, the bench found it unnecessary for the husband to pay any maintenance to the wife and suspended the payment of arrears of alimony.

Supreme Court's Final Decision:
The Supreme Court allowed the appeal in part:
- Custody of Children: The Court restored the learned single Judge's decision, granting custody of Maya and Mahesh to the mother, emphasizing the welfare of the children over the father's statutory right.
- Alimony: The Court upheld the appellate bench's decision to suspend the payment of arrears of alimony, considering the financial disparity between the parties.
- Access Directions: The directions given by the learned single Judge regarding access to the children were restored.

The Court expressed hope that the parents would cooperate for the welfare of their children and provide a harmonious home environment.

Conclusion:
The Supreme Court's judgment focused on the welfare of the children, balancing it against the statutory rights of the parents. The decision underscored the importance of the children's well-being in custody disputes and the need for parents to work together for their children's benefit.