Supreme Court of India
G H DSG versus AKG on 16 December 2019
144
[2019] 15 S.C.R. 144
SUPREME COURT REPORTS
[2019] 15 S.C.R.
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DSG
v.
AKG
(Special Leave Petition (Civil) No. 25098 of 2019)
BDECEMBER 16, 2019
[UDAY UMESH LALIT, INDU MALHOTRAAND KRISHNA MURARI, JJ.]
Child Welfare: Custody of minor daughter – Respondent-father filed a Guardianship Petition before the Family Court seekingCcustody of minor daughter on the ground that the petitioner motherwas suffering from Paranoid Schizophrenia and required treatmentand that on account of mental illness, she had been treating thechild with cruelty – Petitioner-mother contested the Petition allegingthat the minor daughter was being sexually abused by the fatherDand that it was unsafe for the child to be in his custody – Threecounsellors were appointed on various dates as directed by FamilyCourt – The consistent view of all the three Counsellors was thatthe mother showed symptoms of “Paranoid Schezophrenia “ whichrequired immediate assessment and proper treatment keeping in viewthe welfare of the child – Family Court after referring to the reportsEof three Counsellors held that the child expressed her unequivocaldesire to live only with the father and denied the allegations ofsexual abuse by father and, therefore, there would not be anychange in interim custody of minor with the father – Petitionerchallenged the order of Family Court before the High Court –FDuring pendency of appeal before High Court, the petitioner filedapplication before Family Court seeking custody of minor daughterduring vacations for 15 days, which was allowed – However, onthe day of return of custody, the petitioner sent text to respondentthat she was in Goa with daughter and would return after 5 days –Respondent filed contempt petitions against petitioner since she hadGnot returned the custody of the child as per the order of FamilyCourt – Directions were issued to the SHO to locate whereabouts ofthe child whereafter she was found at the residence of petitionerand when produced before the Family Court her custody was handedover to the respondent – The visiting rights of the petitioner wereH
restricted and she was allowed to meet the daughter in the ChildrenRoom of court premises only – High Court dismissed the appeal ofpetitioner and upheld interim custody of daughter with respondent– Hence instant Special Leave Petition by mother – This Courtindividually interviewed both the parents and interacted with thechild and found that she was certainly capable of forming anintelligent preference regarding her custody – The minor daughterbeing over 12 years of age and studying in class VII wasunequivocal about her definite desire to reside with her father –She stated that she received love and affection from her father, whowas taking care of her food, education and assist her in her schoolprojects and activities – Thus, the order of Family Court grantingcustody of the minor daughter to father and visitation rights to themother is affirmed – Special Leave Petition disposed of – ParensPatriae jurisdiction.
Nil Ratan Kundu & Anr. v. Abhijit Kundu (2008) 9 SCC413 : 2008(11) SCALE 437 – relied on Case Law Reference
(2008) 9 SCC 413relied onPara 24
EXTRAORDINARY APPELLATE JURISDICTION: SpecialLeave Petition (Civil) No. 25098 of 2019.
From the Judgment and Order dated 26.03.2019 of the HighCourt of Delhi at New Delhi in MAT (FC) No. 312 of 2018.
Mr. Nirnimesh Dube, Adv. for the Respondent.
Petitioner-in-Person.
The Order of the Court was passed by
INDU MALHOTRA, J.
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1. The present Special Leave Petition has been filed by thePetitioner – mother to challenge the Order dated 26.03.2019 passed bythe Delhi High Court in Matrimonial Appeal (FC) 312/2018 with respectto the custody arrangement of the minor daughter.
2. The minor daughter was born on 21.08.2007, and is now over12 years old. The child is currently residing with the Respondent –father,and is studying in Class VII in Holy Child Senior Secondary School,New Delhi.
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A3. On account of the marital discord between the parties,theRespondent – father filed a Guardianship Petition bearing No. G.P. 2266/2018 before the Family Court, Tis Hazari, New Delhi seeking custody ofthe minor daughter on the ground that the Petitioner –wife was sufferingfrom Paranoid Schizophrenia and required treatment. On account of themental illness, the Petitioner – wife treated the child with cruelty, andBwould prevent the fatherfrom meeting the child.
4. The Petitioner – mother resisted the Guardianship Petition,andmade serious allegationsagainst the father that the minor daughter wasbeing molested by the father, who was guilty of sexual abuse,whichmade it unsafe for the child to be in his custody.C
5. In the Guardianship Petition, the Family Court appointed Mr.Sunil Sachdeva, Counsellor to interact with the child, and submit a Reporton her condition. The Counsellorsubmitted his Report dated 18.07.2018,wherein he has recorded that the child complained of ill-treatment bythe mother. The child categorically stated that her fatherbestowed a lotDof affection on her, and that he had not committed any wrongful actupon her. She stated that she would like to stay with her father, andwanted to be removed from the custody of her mother at the earliest.
6. The child was kept for one night on 18.07.2018 at NirmalChhayakeeping her best interest in mind. She was produced before theEFamily Court on 19.07.2018.
7. On 19.07.2018, the child was referred bythe Family Court toanotherCounsellorviz.Ms. Himali Anand. This Counsellorvideher Reportdated 19.07.2018 recorded that the child made complaints about hermother and stated that she was not taking proper care of her, and wouldFnot provide her with proper food, etc. The child stated that her fatherwas taking good care of her, and that she wanted to live with her fatheronly.
8. On 21.07.2018, the Family Court gave custody of the child tothe mother till 24.07.2018, after which the custody wouldbe handed overGto the father.
9. On 27.07.2018, the mother requested for the appointment of anindependent Child Counselor to assess the mental and psychological stateof the child, and suggested the name of Dr. UzmaPerveento be appointedas a Counsellor.H
10. The Family Court vide Order dated 28.07.2018 directedDr. UzmaPerveento conduct counselling sessions with the child, andsubmit her Reportto the Court.
The Family Court further directed that the child would remain inthe custody of the mother from Saturday (after school hours) till Monday7 p.m., and with the father from Monday 7 p.m. till Saturday morning.
11. Pursuant to the Order dated 28.07.2018, Dr. Uzma Perveenheld four counselling sessions with the child on 31.07.2018, 07.08.2018,14.08.2018 and 05.09.2018, and submitted herReport dated 14.09.2018before the Family Court. The Counsellor after observing the behaviorand conduct of themother, opined that the mother showed symptoms of“ParanoidSchizophrenia”,which required immediate assessment andproper treatment, keeping in mind the welfare of the child. If the mother’scondition remained untreated, it would make the child vulnerable, andwould have a lasting psychological impact on the child.
12. The Petitioner – mother filed a Review Petition before theFamily Court, Tis Hazari seeking Review of Order dated 28.07.2018.
The Family Court vide Order dated 16.11.2018 dismissed theReview Petition. The Court referred to the reports of the threeCounsellors, and held that the child has expressed her unequivocal desireto live only with the father. She denied the allegations of sexual abuse bythe father. The Court held that the child seemed to be very happy in thepresence of the father, and that there shall be no change in the interimcustody of the minor.
13. The Petitioner – mother challenged the Order dated 16.11.2018passed by the Family Court before the High Court in MAT. APP (F.C.)312/2018.
14. During the pendency of the Appeal before the High Court, thePetitioner – mother filed an Application u/S. 151 CPC before the FamilyCourt seeking custody of the minor daughter during the vacations for 15days.
15. The Family Court vide Order dated 27.02.2019 granted custodyof the daughter to the Petitioner – mother from 28.02.2019 to 10.03.2019for vacations. The Petitioner – mother was directed to make a video callto the father every evening during this period. The custody of the childwas to be handed over to the Respondent – father on 11.03.2019.
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A16. On 10.03.2019, the Petitioner – wife sent a text message tothe Respondent – husbandthat she was in Goa with the minor daughter,and would return only on 15.03.2019.
17. On 14.03.2019, the Respondent – father filed an Applicationu/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC forBcontempt of the Orders dated 16.11.2018 and 27.02.2019 against thePetitioner – mother before the Family Court, since the mother had refusedto return the custody of the child.
The Family Court took cognizance of non-compliance of Ordersby the Petitioner – mother, and vide Order dated 18.04.2019 directedCthe SHO, PS Rajouri Garden to locate the whereabouts of the minordaughter, and produce her before the Court.
18. The minor daughter was found at the residence of thePetitioner – mother, and was produced before the Family Court on23.04.2019, when custody was handed over to the Respondent – father.D
19. The Family Court vide Order dated 23.04.2019 suspendedthe visitation rights granted to the Petitioner – mother tillthe next date ofhearing.
20. By a subsequent Order dated 03.05.2019, the Family Courtheldthat further visitation to the Petitioner – mother can be allowed only inEthe Childrens’ Room, TizHazariComplex, Delhi, where the mother couldmeet the child on every working 1[st], 3[rd] and 4[th] Saturday from 3 p.m. to5 p.m., and on 2[nd] Friday from 3:30 p.m. to 5 p.m. The father agreed thatas per the convenience of the child, he would allow the mother to seethe child at the school gate in the morning before school hours.FThis arrangement of visitation by the mother is continuing eversince.
21. The High Court vide the impugned Order dated 26.03.2019dismissed the Appeal filed by the Petitioner – mother, and confirmed theGOrders dated 28.07.2018 and 16.11.2018 passed by the Family Court.
The High Court held that the three Counsellors Reports indicatedthat the child was comfortable in the company of the father, and wantedto live with him. The Court observed that the video clippings submittedby the Petitioner – mother do not prima facie support her allegation ofHsexual abuse by the father.
The Order dated 26.03.2019 passed by the High Court is impugnedby the Petitioner – mother in the present Special Leave Petition.
22. This Court took up the present SLP for hearing on 25.10.2019when Notice was issued. The Petitioner – mother submitted a DVDcontaining some video clippings of the child. She placed on record someadditionaldocuments in support of her contention that the child was beingallegedly molested by the Respondent – father.
23. On 05.12.2019, the Respondent – husband appeared beforethis Court in person along with his Counsel.
We directed the Respondent - father to produce the child beforethis Court on 10.12.2019.
24. On 10.12.2019, both the parties and the minor daughterappearedbefore us. We individually interviewed both the parents and the child.
Having interacted with the child, we are of the view that the minorgirl is certainly capable of forming an intelligent preference regardingher custody.
We found the girl who is over 12 years of age, and is studying inClass VIIto be articulate, and unequivocal about her definite desire toreside with her father. She stated that she received love and affectionfrom her father, who was taking care of her food, education,and wouldassist her in her school projects and activities.
Reliance is placed on the judgment of this Court in Nil RatanKundu &Anr. v. Abhijit Kundu[1] that while exercising parens patriaejurisdiction, the Court is required to give due weight to the ordinary comfortof the child, contentment, intellectual, moral and physical development,health, education and general maintenance, and the favorablesurroundings. The Court is not bound either by statutes, nor by strictrules of evidence, nor procedure or precedent. In deciding the issue ofcustody, the paramount consideration should be the welfare and well-being of the child.
We hereby affirm the Order dated 03.05.2019 passed by the FamilyCourt granting custody of the minor daughter to the father, and visitationrights to the Petitioner – mother as specified in the Order.
1 (2008) 9 SCC 413 : 2008 (11) SCALE 437.
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150SUPREME COURT REPORTS
AThe present Order is passed at an intermediate stage of theproceedings, hence the findings recorded hereinabove are prima faciein nature.
The Special Leave Petition is disposed of accordingly.
Ordered accordingly.BPending applications, if any, shall stand disposed of.
Devika Gujral
SLP disposed of.
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