GWA judgments

 1. Case in SC. Father brought son from UK/US to India. US courts in favor of mother. SC in favor of father.

https://indiankanoon.org/doc/69261674/

Father got custody:

Ms. Binu Tamta (AOR),  Mr.   Braj Nath Patel, Ms.   Sweta, Ms.   Romila, [Father's

VS

Wife's advocates:

Mr. N.S. Dalal

Mr. D. P. Singh,

Mr. R. C. Kaushik, AOR

2.

List of senior SC advocates

https://legalaffairs.gov.in/sites/default/files/report-supAnew_0.pdf

3. Father is not given custody cause child is not comfortable in his presence. Even though wife is died, the maternal gang has completely brainwashed the child and court ignores PAS. This case has several judgments referred which repeatedly insists on "welfare of the child"

https://indiankanoon.org/doc/149080090/

4.

Mr. Vivek Luthra, Advocate

5.

https://indiankanoon.org/doc/25930872/

Mother got one week child custody. Daughter is 12 yr old but has grandmother as female companion and she used to sleep with grandmother. Daughter also wants to stay with father and she said her mother scolds her. X-exam showed that mother thinks her daughter is intelligent and since daughter said her mother is bad, lo and behold, the great legal minds believes these two can be connected!

Noted lines: "As observed recently in Mousami Moitra Ganguli's case 2008 AIR SCW 4043, the Court has to due weight­age to the child's ordinary contentment, health, education, intellectual development and favorable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others."

6. https://indiankanoon.org/doc/1241462/

Supreme Court of India

Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February, 1999

Bench: Umesh C. Banerjee

Art 32 petition challenging constitutionality of S 6(a) of GWA. SC said 'after' means absence of father and not necessarily death of the father. Nowhere, it says that if father is present, then mother can replace him.

Also, S. 2 of HMGA states that "the Act shall be in addition to and not in derogation of the Acts like GWA" , so HMGA does not run counter to GWA.

I Jaising argued for unconsitutionality of 6(a) where only father is natural guardian. 

the cry for equality and equal status for women -- "This cry is not restrictive to any particular country but world over with variation in degree only. Article 2 of the Universal Declaration of Human Rights [as adopted and proclaimed by the General Assembly in its resolution No.217A(III)] provided that everybody is entitled to all rights and freedom without distinction of any kind whatsoever such as race, sex or religion and the ratification of the convention for elimination of all forms of discrimination against women (for short CEDAW) by the United Nations Organisation in 1979 and subsequent acceptance and ratification by India in June 1993 also amply demonstrate the same."

"We the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus negates gender bias and it is on this score, the validity of Section 6 of the Hindu Minority and Guardianship Act of 1956 has been challenged in the matters under consideration, on the ground that dignity of women is a right inherent under the Constitution which as a matter of fact stands negatived by Section 6 of the Act of 1956. "

"It has been the definite case of the petitioner in this petition under Article 32 that in spite of best efforts of the petitioner, the father has shown total apathy towards the child and as a matter of fact is not interested in welfare and benefit of the child excepting however claiming the right to be the natural guardian without however discharging any corresponding obligation. It is on these facts that the petitioner moved this Court under Article 32 of the Constitution praying for de claration of the provisions of Section 6(a) of the Act read with Section 19(b) of the Guardian Co nstitution. and Wards Act as violative of Articles 14 and 15 of the"

"Ms. Indira Jaisingh, appearing in support of the petitions strongly contended that the provisions of section 6 of the Act seriously disadvantage woman and discriminate man against woman in the matter of guardianship rights, responsibilities and authority in relation to their own children."

"It has been contended that on a true and proper interpretation of section 4 and the various provisions thereunder and having due regard to the legislative intent, which is otherwise explicit, question of putting an embargo for the mother in the matter of exercise of right over the minor as the guardian or ascribing the father as the preferred guardian does not arise, but unfortunately however, the language in section 6 of the Act runs counter to such an equality of rights of the parents to act as guardian to the minor child."

"In re Mc Grath (1893, 1 Ch.143) Lindley, L.J., observed: "The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word `welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded." Lord Esher, M.R. in the Gyngall (1893) 2 Q.B.232 stated: "The Court has to consider therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent."

"Obviously, a rigid insistence of strict statutory interpretation may not be conducive for the growth of the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and gro wth of the child. 16. Incidentally the Constitution of India has introduced an equality code prohibiting discrimination on the ground of sex and having due regard to such a mandate in the Constitution, is it justifiable to decry the rights of the mother to be declared a natural guardian or have the father as a preferred guardian?"

Ratio Decidendi:

"Turning attention on the principal contention as regards the constitutionality of the legislation, in particular Section 6 of the Act of 1956 it is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise"

"It is an axiomatic truth that both the mother and the father of a minor child are duty bound to take due care of the person and the property of their child and thus having due regard to the meaning attributed to the word `guardian' both the parents ought to be treated as guardians of the minor. As a matter of fact the same was the situation as regards the law prior to the codification by the Act of 1956. The law therefore recognised that a minor has to be in the custody of the person who can sub-serve his welfare in the best possible way - the interest of the child being paramount consideration."

"The father and mother therefore, are natural guardians in terms of the provisions of Section 6 read with Section 4(c). Incidentally it is to be noted that in the matter of interpretation of statute the same meaning ought to be attributed to the same word used by the statute as per the definition section. In the event, the word `guardian' in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6(a) and in that perspective mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6(a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression `after' therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature."

"Gender equality is one of the basic principles of our Constitution and in the event the word `after' is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same."

"In our opinion the word `after' shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word `after' does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after' as used in Section 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child."

"In that view of the matter question of ascribing the literal meaning to the word `after' in the context does not and cannot arise having due regard to the object of the statute, read with the constitutional guarantee of gender equality and to give a full play to the legislative intent, since any other interpretation would render the statute void and which situation in our view ought to be avoided."

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7. 

Pradeep Santolia & Ors. v. State & Anr. WP(Crl.) 3294/2018 decided on October 29, 2018 - DELHI HIGH COURT

a Coordinate Bench of Delhi High Court held that the child’s ties with father should not be completely and perpetually stopped to ensure a healthy emotional quotient and a robust psychological growth of the child, for which the affection of both the parents would be necessary. 

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8. https://indiankanoon.org/doc/181379387/

Amyra Dwivedi (Minor) Throu Her ... vs Abhinav Dwivedi on 6 March, 2020

Habeas Corpus petition by mother. SC directed to file GWA petition 

Petitioner advocate - Mr. Vishwajit Singh, AOR

Age of the child - 4-5 yrs (LKG student) [Para 6]

"When a court grants visitation rights, these rights should be granted in such a way that the child and the parent who is granted visitation right, can meet in an atmosphere where they can be like parent and child and this atmosphere can definitely not be found in the office of District Legal Services Authority. That atmosphere may be found in the home of the parent or in a park or a restaurant or any other place where the child and the parent are comfortable." [Para 5]

Relief

(I) The mother shall be entitled to meet the child both on the Saturdays and Sundays for a period of eight weeks at the first instance. She will take the child from the grand parents’ home at 10:00 am and drop her back at 5:00 pm in the evening. In case, the Saturday is a school working day, then the mother will be entitled to pick the child up from school and stay with her till 8:00 pm and then drop her to the grand parents’ home. 

(II) After the period of eight weeks is over and the child becomes familiar with her mother and gets to know her better, the mother will be entitled to keep the child on weekends from 10:00 am in the morning on Saturday till 5:00 pm in the evening on Sunday. In case, Saturday is a school working day, the mother will pick up the child immediately after school and drop her back to the grand parents’ house at 5:00 pm in the evening on Sunday.

(III) On festivals, such as, Holi, Diwali, etc., the child may spend time with the grand parents in the morning, but in the evening, she will be permitted to go with the mother for at least four hours on every festival. 

(IV) As far as summer vacations are concerned, if the vacations are for more than fifteen days, the mother will be entitled to take the child for seven days, but only after 30th April. In case the vacations are for more than one month, then she will be entitled to keep the child for fifteen days. During the vacations, the mother can take child out for holidays to any place wherever she feels comfortable.

(V) On the birthday of the child, we hope and expect that both the parents should spend some time together with the child leaving their differences apart, but if they cannot do so, then the mother can have custody of the child in the first half of the day for at least eight hours and the grand parents in the second half. 

(VI) We permit the mother to attend all the school functions, such as, annual day, foundation day, sports day or parents teacher meeting. We direct the school concerned to ensure that on the production of the order of this Court, the name of the appellant be entered into the school records as mother of the child and she be called for all the functions when other parents are called. She shall also be apprised about the progress of the child in the school.

(VII) As far as the contact rights are concerned, since the mother and child live in same town, the mother can either make video call or telephone call with the child every day for ten minutes between 7:30 pm to 8:30 pm in the evening.

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9.  https://indiankanoon.org/doc/929793/ Gaurav Nagpal Vs Sumedha Nagpal

His Prev wife committed suicide. Multiple criminal complaints against him. He is changing schools of the child. Wife filed contempt, got 1 month imprisonment for the father. Wife filed HabCor in HC which she lost. She then filed SLP and a Art 32 petition in SC. Both were dismissed by SC and asked to go to family court.

a. "In determining whether it will be for the best interests of a child to grant its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment."

b. Secret why mothers are important: [English Law] -- 

Vivek comments "This comes from english law. The britishers left India long ago and our Indian culture is different from Britishers and may I say better because it has survived despite the atrocities of britishers."

In Habeas Corpus, Vol. I, page 581, Bailey states;

"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests  of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate."

c. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 

d. in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

e. The trump card in appellants' argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs.

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10. https://indiankanoon.org/doc/980262/

Samuel Stephen Richard vs Stella Richard on 2 November, 1954

Equivalent citations: AIR 1955 Mad 451, 1955 CriLJ 1192

Author: Ramaswami

The principal considerations which have been laid down under Section 17 in order to secure this welfare are ten in number, viz., (a) Age (b) Sex (c) Religion (d) Character and capacity of the proposed guardian (e) his nearness of kin to the minor (f) the wishes, if any, of the deceased parent (g) Any existing or previous relations of the proposed guardian with the minor or his property (h) If the minor is old enough to form an intelligent preference that preference has to be considered (i) In the case of former European British Subjects other things being equal, if the minor was a male of tender years or a female, the minor was to be given to the mother and if the minor was a male of age to require education and preparation for labour and business, then to the father (j) Subject to the provisions of Section 17, the Court shall he 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. These tests are no doubt laid down under Section 17 hut are equally applicable in considering the welfare of the minor under Section 25 of the Act. 

https://indiankanoon.org/search/?formInput=ties%20of%20affection+doctypes:supremecourt

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11. HON’BLE SRI JUSTICE T. AMARNATH GOUD I.A.Nos.1 & 2 OF 2020 IN C.C.No.481 OF 2020 AND CONTEMPT CASE No.481 OF 2020

http://tshcstatus.nic.in/hcorders/2020/cc/cc_481_2020.pdf

https://indiankanoon.org/doc/91697211/

Age of child: 5 yrs (date of order 13.12.2020 when age of child was 6 yrs, order passed on 12.2019)

Compensatory access of 5 nights as child separated for 1 yr from father: This arrangement is made in view of the child being away from the father for almost a year and for the past two years, he was given custody for only 43 days. [Para 4]

 A parent cannot be a guest in the life of their child. If visitation rights only are granted for limited hours, it may not be sufficient for the child to have comfortable time with the father or mother, whoever may be the case. The wider the gap, the bonds get broken quicker and the child is left confused and ends up believing this. Such acts of any parent in separating a child from the other parent should be nipped in the bud otherwise the separated parent ends up becoming a guest in the life of the child. Overnight custody must be encouraged wherever possible and mere meeting and spending time with the parent for couple of hours in court premises, hotel, theatre, Mall, park etc., under the supervision of other parent or relative will not serve any purpose of visitation as the child will be under psychological pressure and will not be comfortable. [Para 26, Harsha Tipirneni vs Smt. Pooja Tipimeni ]

Other judgments:

https://indiankanoon.org/doc/80352034/

"It is needless to say that parents cannot be a guest in the life of the children. Allowing a parent to visit the children occasionally, periodically for few minutes in Court, Police station, Malls, Temple and house of the parent in whose custody the children are may not be a just decision towards the children. The children must get absolute freedom with each parent, to know them and understand them better instead of being tutored by one parent against other. In view of the same, this Court feels that children should be given visitation rights to visit and stay with the parents but not the parents visiting the children."

https://indiankanoon.org/doc/171469074/

"In the event if any of the parents are not willing or tutoring the child not to go with the other parents, this Court has given liberty to the deprived parent to approach the concerned SHO with this copy of the order and seek for custody of the child as per the condition indicated above. On receipt of such information from either of the parents, the concerned SHO shall immediately make arrangements of handing over the custody of the child to the other parents. The concerned SHO shall implement this order as and when it is requested by the parents."

"Parents are free to talk to the child over phone/video calling as and when required."

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12. https://indiankanoon.org/doc/48721287/

Vivek Singh Vs Romani Singh.

Army officer marries KV teacher. Dispute when child under 2. Reaches SC after 6 years of filing case in FC after an appeal in HC. Child turns 8 and lives with original holder i.e. father in this case. Both HC and SC favored mother giving lot of 'gyaan'

She also alleged that the appellant leaves for his office at 8.30 a.m. and returns back late in the evening and, therefore, he is not in a position to look after the basic needs of the child. On the other hand, the respondent had been devoting all her time to the child after coming from the school and during her duties in the school, the child is being looked after by her parents who had been frequently visiting the matrimonial house.

It is the appellant who had provided all necessary expenses for the maintenance of the child.

Father given weekend access once in a month:

“33. Since the child is a school going child and respondent is living at Meerut, in these circumstances, respondent will be at liberty to take the child from the appellant on every 4th Friday of the month at 5.30 p.m. and the child shall spend two days with the respondent. The child shall remain with the father on Friday followed by Saturday and Sunday. The child shall be returned safely to the mother on Sunday at 6.00 P.M.

34. Each year during Summer vacation custody of Baby Saesha Singh would be entrusted by the appellant to the respondent for a period of 15 days to be inter-se agreed upon between the parties and in case of any non-agreement, the dates ts be decided by the4 learned Family Court.

35. Each year during Winter vacations Baby Saesha Singh would be entrusted by the appellant to the respondent for a period of 4 days to be inter-se agreed upon between the parties and in case of any non -agreement, the dates to be decided by the learned Family Court.

36. On the birthday of child, custody of Baby Saesha Singh would be entrusted to the respondent for a period of 4 hours in the evening, the exact hours to be mutually agreed upon by the parties."

High Court had, by impugned judgment rendered on April 02, 2013, entrusted the custody to the respondent and only because of the stay of contempt proceedings given by this Court, the respondent is deprived of the custody of the child for all these years, and she should not be made to suffer the prejudice thereof.

"52. The trump card in the appellant's argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments."

"The effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical. It could also have effects that are more immediate and transitory to long lasting thereby having a significantly negative repercussion in the advancement of the child. While these effects don’t apply to every child of a separated or divorced couple, nor has any child experienced all these effects, the deleterious risks of maladjustment remains the objective of the parents to evade and the court’s intent to circumvent. This right of the child is also based on individual dignity."

"Second justification behind the 'welfare' principle is the public interest that stand served with the optimal growth of the children. It is well recognised that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognised in many international covenants, which are adopted in this country as well. Child- centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. It has been emphasised by this Court also, time and again, following observations in Bandhua Mukti Morcha v. Union of India & Ors."

“4. The child of today cannot develop to be a responsible and productive member of tomorrow's society unless an environment which is conducive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society. Children are the greatest gift to humanity. Mankind has the best hold of itself. The parents themselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always provide the potential for human development. If the children are better equipped with a broader human output, the society will feel happy with them. Neglecting the children means loss to the society as a whole. If children are deprived of their childhood — socially, economically, physically and mentally — the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The Founding Fathers of the Constitution, therefore, have emphasised the importance of the role of the child and the need of its best development.” 

Same sentiments were earlier expressed in Rosy Jacob v. Jacob A. Chakramakkal[3] in the following words:

“15. ...The children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society...” It hardly needs to be emphasised that a proper education encompassing skill development, recreation and cultural activities has a positive impact on the child. The children are the most important human resources whose development has a direct impact on the development of the nation, for the child of today with suitable health, sound education and constructive environment is the productive key member of the society. The present of the child links to the future of the nation, and while the children are the treasures of their parents, they are the assets who will be responsible for governing the nation. The tools of education, environment, skill and health shape the child thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public and contributing to economic progression. The growth and advancement of the child with the personal interest is accompanied by a significant public interest, which arises because of the crucial role they play in nation building.

"A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided."

"She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are 'right' in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellant's effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellant's view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as 'The Parental Alienation Syndrome'[4]. It has at least two psychological destructive effects:

(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.

(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant “bonding” begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she “must continue to be so for some years to come.” Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.

No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.

We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.

New academic session would start in April, 2017. At this time, the process of fresh admissions in schools is underway. We are confident that the respondent shall be able to have Saesha admitted in her school where she is teaching inasmuch as wards of the teachers are accorded such preferences. Therefore, the respondent is allowed to process the case of admission of Saesha in Kendriya Vidyala, INA Colony, New Delhi and for this purpose appellant shall fully cooperate. In case she is able to secure the admission, custody of Saesha shall be handed over to the respondent by the appellant one week before the next academic session starts. Custody shall remain with the respondent for full academic year. The matter shall be listed in the month of March, 2018 for further directions when this Court would assess as to how the arrangement devised above has worked out. We, however, give liberty to both the parties to move application for variation of the aforesaid arrangement, in case consequences of the aforesaid arrangements turn out to be such which necessitate alteration or modification in the aforesaid arrangement."

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https://indiankanoon.org/doc/1020239/

Barred by estoppel in child custody matter is untenable due to continuous change of circumstances and welfare of child being paramount

Intelligent preference of the child may just be intelligent manipulation (But, the weight to be accorded to the preference of the minor, depends upon various other factors. While the intelligent preference of the minor could be one of the several factors, it could never be the controlling factor.)

(Burden of proof of change of circumstances is on the one claiming it as a ground)

(vi) In Rosy Jacob vs. Jacob A.J.Chakramakkal {1973 (1) SCC 840}, the Supreme Court made it clear that the principle of estoppel found in Section 115 of the Indian Evidence Act, is not applicable to orders relating to custody of minor children.

(vii) Again in Dhanwanti Joshi vs. Madhav Unde {1998 (1) SCC 112}, the Supreme Court pointed out that orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody. But such change in custody must be proved to be in the paramount interest of the child.

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Phrases

"in order to provide a normal home environment and happy childhood to the children"

"Though both parties have painted each other with a brush, broomed out of animosity, I prefer to ignore them for the present, in view of the fact that a person who is a bad child to his/her parents, a bad partner to his/her spouse or a bad samaritan to his/her neighbours, could still be a good parent. Similarly, a person who is too good to his/her parents, his/her spouse and his/her neighbours, may prove to be a bad parent."

30. If both parties are not disqualified from having the custody of the child, then it is their duty, under normal circumstances, to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment. The United Nations Convention on the Rights of the Child, which entered into force on 2.9.1990 stipulates under Article 9.3 that "States Parties shall respect the right of the child, who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis except if it is contrary to the child's best interest". Article 18.1 of the Convention states as follows :

"States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. The parents or as the case may be legal guardians, have primary responsibility for the upbringing and development of the child. The best interest of the child will be their basic concern."

Therefore, in an ideal situation, the parents themselves should come forward to draw up "parenting schedules" so that both the parents share the responsibilities for bringing up the child. But in cases where they themselves are not matured enough to reach an understanding and draw up a parenting schedule, it becomes the duty of the Court to do so, keeping in mind, the interest and welfare of the child.

31. It is quite unfortunate that the Courts still dabble with the age old concepts of custody and visitation rights. These terms emanate from a rights regime rather than a responsibilities regime. Today the emphasis has shifted from the regime where we were concerned with the rights of the parents over the child, to a regime where we should be concerned about the responsibilities of the parents towards the child. After the advent of the Children Act, 1989 in U.K., the old terminology of "custody", "guardianship" and "custodianship orders", have gone {see Cheshire and North's Private International Law-Thirteenth Edition-Lexis Nexis Butterworths Publication (page 857)}. Instead, Section 8 of the Act, uses the terms "residence" and "contact" (or access). Taking the law from the rights regime to the responsibilities regime, the Hague Conference concluded a Convention in 1996 known as "Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility for the Protection of Children". The provisions of this Convention lay emphasis on parental responsibility and it requires that the child should be treated as an individual and not simply as an appendage of its parents.

38. ... it was represented by the first respondent that the applicant had poisoned the mind of the child to such an extent that the child was actually turning violent. Therefore, the first respondent herself requested me to have a Psychiatric assessment of the child.

39. Though the request of the first respondent actually put me in a predicament, I acceded to her request, in view of the fact that today in all child custody cases, the same problem is cropping up. In 90% of the cases which I have come to handle in the recent past, every other child refuses to go from the parent with whom he is residing, to the other parent. Unfortunately, in most of the cases, we, the Judges plead helplessness, whenever the children refused to go with one of the parents. This has happened especially in cases where the children are aged more than 5 years. Judges, who are not experts in child psychiatry, tend to believe the views expressed by children in their chambers as amounting to "intelligent preference", though at times they happen to be mere "intelligent manipulations". In U.K., a service known as "Children and Family Court Advisory and Support Service" (CAFCASS) is available, to assess if the views expressed by children could be regarded as "intelligent preference".

40. Sub-Section (3) of Section 17 of the Guardians and Wards act, 1890 prescribes that if the minor is old enough to form an intelligent preference, the Court may consider that preference. But, the weight to be accorded to the preference of the minor, depends upon various other factors. While the intelligent preference of the minor could be one of the several factors, it could never be the controlling factor.

43. However, if a Court pleads helplessness on the ground that a child of 6 years or 7 years, refuses to go with one of the parents, it would, in my opinion, amount to an abdication of the responsibility that is invested with the Court. If a Court does nothing more, than merely recording the unwillingness of the child to go with one of the parents, the Court would be seen as surrendering its responsibility to the will of a small child. In such an event, the preference that the child makes, would replace the judgment that a Court is obliged to render.

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Noncompliance of the Visitation Order of Court - Contemt of Court. 1) Madras HC, S. Selvakumar vs Vijayasanthi, Contempt Petition No. 2714 of 2015, 22/01/2018, 2) Delhi HC, Mr. Aman Oberoi vs Tina Oberoi, Cont. Cas.(C) No. 295/2008, 08/7/2008, [5 yr old child started crying in court on seeing father and saying father beat him and mother but could not substantiate it. ]

3) Kerala High Court, Don Paul vs Tisa Don @ Tisa Palackal Kuriakose, CONTEMPT CASE(C) NO. 845 OF 2021(S) IN OP (FC) 281/2019, 05/10/2021, 4) Jammu & Kashmir High Court, Arun Jamwal vs Mukteshi Sharma, CCP(S) No. 199/2020, CM Nos. 1149/2021, 1212/2021, 5236/2021, 5237/2021, 3652/2020, 8212/2020, 22/10/2021., 5) Calcutta High Court (Appellete Side), Sri Saibal Basu vs Smt. Sudeepta Basu, CPAN 409 of 2020, IA No: CAN 1 of 2020,16/8/2021.

On Maintainability 

i. Rajni Gupta v. Vikas Gupta, 2019 SCC OnLine Del 11206; 

ii. Ajay Pall v. Chanda Pall; 2015 SCC OnLine Delh 8916; 

iii. Smt. Usha Kumari v. Principal Judge, Family Courts & Ors., 1997 SCC OnLine Pat 379; 

iv. Smt Pallavi v. Shri Raj Kamal; 2007 SCC OnLine Jhar 360. 

On Visitation Rights 

i. Yashita Sahu v. State of Rajasthan & Ors., (2020) 3 SCC 67; 

ii. Tushar Vishnu Ubale v. Archana Tushar Ubale, 2016 SCC OnLine Bom 33; 

iii. Ritika Sharan v. Sujoy Ghosh, 2020 SCC OnLine SC 878; 

iv. Ashish Dubey v. State of (NCT) of Delhi & Ors. 2020 SCC OnLine Del 362 

v. Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 

vi. Amyra Dwivedi v. Abhinav Dwivedi & Anr., (2021) 4 SCC 698. 

On Welfare of the Child 

i. Gaurav Nagpal v. Sumedh Nagpal, (2009) 1 SCC 42; 

ii. Athar Hussain v. Syed Siraj Ahmed & Ors., (2010) 2 SCC 654;

iii. Gayatri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471. 

On Misrepresentation 

i. Dalip Singh v. State of U.P., (2010) 2 SCC 114. 

No substantive petition has been filed by the respondent and the interim relief which has the effect of granting the final relief cannot be granted at an interim stage. 

Reference has been made to 

U.P. and Others v. Ram Sukhi Devi, (2005) 9 SCC 733; 

Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840;

Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC; 

Colonel Ramesh Pal Singh v. Sugandhi Aggarwal, Mat. App. (F.C.) 211/2019, 409, 

Manish Aggarwal vs. Seema Aggarwal ILR (2013) I Delhi 210; 

Radhey Shyam & Anr. v. Chhabi Nath & Ors. (2015) 5 SCC 423; 

Dr. Geetanjali Aggarwal v. Dr. Manoj Aggarwal Mat.App. (F.C.) 126/2019 decided on October 22, 2021, 

Vaidehi Jagannathan Kothimangalam v. L. Badri Narayanan CM(M) 483/2021 decided on July 27, 2021 and 

Prashant Prakash Sahni v. Devika Mehra, Mat. App. (F.C.) 141/2020.

Interrogatories:

to narrow the controversy and facilitate framing of issues regarding the disputed facts
https://www.livelaw.in/pdf_upload/1663848401746658322022-437667.pdf 

https://www.livelaw.in/news-updates/cpc-interrogatories-plaintiff-burden-of-proof-delhi-high-court-210849