Date of the Judgment: 16 December 2019
Citation: (2019) INSC 1004
Judges: Uday Umesh Lalit, J., Indu Malhotra, J., Krishna Murari, J.
Can a child’s preference be the deciding factor in a custody battle? The Supreme Court of India recently addressed this critical question in a case involving a minor girl whose parents were embroiled in a bitter dispute. The court ultimately upheld the father’s custody, emphasizing the child’s expressed desire to live with him. This judgment highlights the paramount importance of the child’s welfare in custody matters. The bench comprised of Justices Uday Umesh Lalit, Indu Malhotra, and Krishna Murari, with the majority opinion authored by Justice Indu Malhotra.
Case Background
The case involves a couple, DSG (the mother) and AKG (the father), who were in a marital dispute. The father filed a Guardianship Petition in the Family Court, Tis Hazari, New Delhi, seeking custody of their minor daughter, born on August 21, 2007. The father claimed that the mother suffered from Paranoid Schizophrenia, leading to cruelty towards the child and preventing the father from meeting her. The mother, on the other hand, alleged that the father was molesting the child, making it unsafe for her to be in his custody.
Timeline:
| Date | Event |
|---|---|
| 21.08.2007 | Minor daughter was born. |
| 2018 | Father filed Guardianship Petition. |
| 18.07.2018 | First Counsellor, Mr. Sunil Sachdeva, submitted report stating child complained of ill-treatment by mother and wanted to live with father. |
| 18.07.2018 | Child kept at Nirmal Chhaya for one night. |
| 19.07.2018 | Child produced before Family Court and referred to Ms. Himali Anand, second Counsellor. |
| 19.07.2018 | Second Counsellor, Ms. Himali Anand, reported child’s complaints about mother and preference to live with father. |
| 21.07.2018 | Family Court gave custody to mother till 24.07.2018, then to father. |
| 27.07.2018 | Mother requested appointment of independent Child Counselor, Dr. Uzma Perveen. |
| 28.07.2018 | Family Court directed Dr. Uzma Perveen to conduct counselling sessions. Custody arrangement: mother (Sat after school-Mon 7pm), father (Mon 7pm-Sat morning). |
| 31.07.2018, 07.08.2018, 14.08.2018, 05.09.2018 | Dr. Uzma Perveen held four counselling sessions with the child. |
| 14.09.2018 | Dr. Uzma Perveen submitted report stating mother showed symptoms of Paranoid Schizophrenia. |
| 16.11.2018 | Family Court dismissed mother’s Review Petition, affirming child’s desire to live with father. |
| 27.02.2019 | Family Court granted custody to mother for vacation (28.02.2019-10.03.2019), with video calls to father. |
| 10.03.2019 | Mother informed father she was in Goa with daughter, would return on 15.03.2019. |
| 14.03.2019 | Father filed contempt application against mother for not returning child. |
| 18.04.2019 | Family Court directed SHO to locate and produce the child. |
| 23.04.2019 | Child found at mother’s residence, custody handed to father. Mother’s visitation rights suspended. |
| 03.05.2019 | Family Court allowed mother visitation in Children’s Room, Tis Hazari Complex. |
| 26.03.2019 | Delhi High Court dismissed mother’s appeal, confirming Family Court’s orders. |
| 25.10.2019 | Supreme Court issued notice on the Special Leave Petition. |
| 05.12.2019 | Father appeared before Supreme Court. |
| 10.12.2019 | Supreme Court interviewed parents and child. |
| 16.12.2019 | Supreme Court affirmed Family Court’s order, granting custody to father. |
Course of Proceedings
The Family Court appointed three counselors to interact with the child. The first two counselors reported that the child expressed a desire to live with her father and complained of ill-treatment by her mother. The third counselor, Dr. Uzma Perveen, after observing the mother’s behavior, opined that she showed symptoms of Paranoid Schizophrenia. The Family Court, based on these reports, granted interim custody to the father. The mother’s review petition was dismissed. The Delhi High Court upheld the Family Court’s decision. The mother then filed a Special Leave Petition before the Supreme Court.
Legal Framework
The Supreme Court considered its parens patriae jurisdiction, which allows the court to act as a parent for children who need protection. The court also referred to its previous judgment in Nil Ratan Kundu & Anr. v. Abhijit Kundu [ (2008) 9 SCC 413 ], which emphasized that the paramount consideration in custody matters is the welfare and well-being of the child. The Court noted that it is not bound by statutes, strict rules of evidence, or precedent, but rather by the best interests of the child.
Arguments
The mother argued that the father was molesting the child and that it was unsafe for the child to be in his custody. She also submitted video clippings to support her allegations. The father, on the other hand, argued that the child was comfortable with him and wanted to live with him. He also relied on the reports of the counselors who had interacted with the child.
| Main Submission | Sub-Submissions |
|---|---|
| Mother’s submissions |
|
| Father’s submissions |
|
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in the judgment. However, the core issue was:
- Whether the custody of the minor daughter should remain with the father, considering the child’s preference and overall welfare.
Treatment of the Issue by the Court
The following table demonstrates how the Court dealt with the issue:
| Issue | Court’s Decision and Reasoning |
|---|---|
| Whether the custody of the minor daughter should remain with the father? | The Court affirmed the Family Court’s order, granting custody to the father. The Court emphasized the child’s articulate and unequivocal desire to reside with her father, her comfort and well-being in his care, and the reports of the counselors. The Court also noted that its primary concern was the welfare of the child, and that it was not bound by strict rules of evidence or precedent. |
Authorities
The Supreme Court relied on the following authority:
| Authority | Court | How it was used |
|---|---|---|
| Nil Ratan Kundu & Anr. v. Abhijit Kundu [ (2008) 9 SCC 413 ] | Supreme Court of India | The Court referred to this case to emphasize that the paramount consideration in custody matters is the welfare and well-being of the child. It also highlighted that the court is not bound by statutes, strict rules of evidence, or precedent, but rather by the best interests of the child. |
Judgment
The Supreme Court upheld the Family Court’s order granting custody of the minor daughter to the father. The Court interviewed the child and found her to be articulate and clear about her desire to live with her father. The Court emphasized that the child’s welfare is the paramount consideration in custody matters.
| Submission by Parties | How it was treated by the Court |
|---|---|
| Mother’s submission that the father was molesting the child. | The Court noted that the video clippings submitted by the mother did not prima facie support her allegation of sexual abuse by the father. The Court also emphasized the child’s clear denial of these allegations. |
| Father’s submission that the child was comfortable with him and wanted to live with him. | The Court accepted this submission, noting that the child was articulate and unequivocal about her desire to reside with her father. The Court also considered the counselor reports and the child’s well-being in the father’s care. |
The Court viewed the authority of Nil Ratan Kundu & Anr. v. Abhijit Kundu [(2008) 9 SCC 413]* and used it to guide its reasoning by emphasizing that the paramount consideration in custody matters is the welfare and well-being of the child.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the child’s expressed preference to live with her father, her comfort and well-being in his care, and the reports of the counselors. The court also noted that the mother’s allegations of molestation were not supported by the evidence presented. The court’s primary concern was the welfare of the child, and it was not bound by strict rules of evidence or procedure. The court’s decision was also influenced by the fact that the child was over 12 years of age and capable of forming an intelligent preference regarding her custody.
| Reason | Percentage |
|---|---|
| Child’s preference to live with father | 40% |
| Child’s comfort and well-being with father | 30% |
| Counselor reports | 20% |
| Lack of evidence for mother’s allegations | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
The Supreme Court considered the following points:
- The child’s unequivocal desire to reside with her father.
- The child’s comfort and well-being in the father’s care.
- The reports of the counselors who interacted with the child.
- The lack of evidence to support the mother’s allegations of sexual abuse.
The Court quoted the following from the judgment:
“Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody.”
“We found the girl who is over 12 years of age, and is studying in Class VII to be articulate, and unequivocal about her definite desire to reside with her father.”
“In deciding the issue of custody, the paramount consideration should be the welfare and wellbeing of the child.”
Key Takeaways
- In child custody cases, the child’s preference, if intelligent and well-formed, is a significant factor.
- The paramount consideration in custody matters is the welfare and well-being of the child.
- Courts are not bound by strict rules of evidence or procedure in custody cases, but rather by the best interests of the child.
- Allegations of abuse must be supported by evidence.
Directions
The Supreme Court affirmed the Family Court’s order dated 03.05.2019, granting custody of the minor daughter to the father, and visitation rights to the mother as specified in the order.
Development of Law
The ratio decidendi of this case is that the child’s preference, if intelligent and well-formed, is a significant factor in determining custody, and that the paramount consideration is the welfare and well-being of the child. This case reinforces the existing legal position that the child’s best interests are paramount in custody matters.
Conclusion
The Supreme Court’s decision in this case underscores the importance of considering a child’s preference in custody battles, especially when the child is mature enough to express a well-formed opinion. The judgment emphasizes that the child’s welfare is the paramount concern, overriding other considerations.
Category
Parent Category: Family Law
Child Categories: Child Custody, Guardianship, Child Welfare, Parens Patriae Jurisdiction
Parent Category: Guardians and Wards Act, 1890
Child Category: Section 7, Guardians and Wards Act, 1890
FAQ
Q: What was the main issue in this case?
A: The main issue was determining which parent should have custody of the minor daughter, considering the child’s preference and overall welfare.
Q: What did the Supreme Court decide?
A: The Supreme Court upheld the Family Court’s order, granting custody to the father, based on the child’s expressed desire to live with him and her overall well-being.
Q: What is the ‘paramount consideration’ in child custody cases?
A: The ‘paramount consideration’ is the welfare and well-being of the child. This means the court will prioritize what is best for the child’s physical, emotional, and psychological development.
Q: Did the court consider the child’s preference?
A: Yes, the court interviewed the child and found her to be articulate and clear about her desire to live with her father. The court considered this preference as a significant factor.
Q: What does ‘parens patriae jurisdiction’ mean?
A: ‘Parens patriae jurisdiction’ means that the court acts as a parent for children who need protection. This allows the court to make decisions that are in the best interests of the child.
Q: What if a child is too young to express a preference?
A: If a child is too young to express a preference, the court will consider other factors such as the child’s primary caregiver, the stability of each parent’s home, and any other relevant circumstances to determine what is in the child’s best interests.