1. Dispute over minor child's education and custody — Proceedings under Sections 7 and 12 of the Guardian and Wards Act, 1890. (Para 2 )
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2019 Supreme(SC) 733
SUPREME COURT OF INDIA
ASHOK BHUSHAN, NAVIN SINHA, JJ.
Sheoli Hati – Appellant
Versus
Somnath Das – Respondent
Civil Appeal Nos.5388-5389 of 2019 (arising out of SLP(C) Nos.15912-15913 of 2018)
Decided On : 11-07-2019
Important Points
IMPORTANT POINT
In deciding custody of a child, the interest of the child is paramount. The court should exercise parens patriae jurisdiction.
In deciding custody of a child, the interest of the child is paramount. The court should exercise parens patriae jurisdiction.
Subject
Family Law - CUSTODY AND GUARDIANSHIP
Act Referred
Headnote
Guardian and Wards Act, 1890 - Sections 7 and 12 - Family Court directing the child to continue in custody and guardianship of her appellant-mother till she reaches the age of 11 years and continue to pursue her education from Jamshedpur - Respondent-father was allowed visitation right - Child was to be in custody of father and mother each for half of each vacation of the school - Family Court further directed the child to be sent to a boarding school of repute where she qualifies and is able to get admission that for the academic session 2019-2020 - Appellant and respondent both challenging this order in first appeal before High Court - High Court, as interim measure, allowed the child to be admitted Good Shepherd International School, Ooty and directed that compliance be reported - First appeal still pending before High Court - High court requested to decide the appeal exercising parens patriae jurisdiction in best interest of welfare and future of the child - High Court should also take into consideration subsequent materials which may be brought before it by the parties including the progress report of the child from Good Shepherd International School, Ooty. (Para 22)
Facts of the case:
The parties were husband and wife having a girl child and divorced. They joined issues on custody of the child. The husband however gave up claim for custody and prayed that the child may be permitted to be admitted at a reputed boarding school.
High Court permitted the child to be admitted in Good Shepherd International School, Ooty and adjourned the matter till compliance report.
Wife opposing and praying that the child be admitted in a school at Jamshedpur where she is residing.
Finding of the Court:
In deciding such cases, interest of the child is paramount.
Result: Appeals disposed of.
Legal Category Hierarchy
Advocates Appeared:
For Petitioner(s): Mr. Nikilesh Ramachandran, AOR
For Respondent(s): Mr. Ashok Panigrahi, Adv. Mr. S. Vinay Ratnakar, Adv. Mr. Nawab Singh, Adv.
For Petitioner(s): Mr. Nikilesh Ramachandran, AOR
For Respondent(s): Mr. Ashok Panigrahi, Adv. Mr. S. Vinay Ratnakar, Adv. Mr. Nawab Singh, Adv.
Table of Contents
2. Mother alleges poor academic performance and medical issues in boarding school; Father claims child's progress and alleges parental alienation by the mother. (Para 4 , 5 , 6 )
3. Boarding schools can provide a neutral environment to protect children from the psychological distress caused by embittered parental relationships and alienation. (Para 8 , 9 , 10 , 13 , 16 , 17 , 20 )
4. The welfare of the minor child is the paramount consideration in custody and education matters, overriding the statutory rights of the parents. (Para 18 , 19 )
5. Appeals disposed of without interfering with the High Court's order; High Court directed to finally decide pending appeals considering subsequent reports. (Para 15 , 22 , 23 , 24 )
6. What is the paramount consideration in determining child custody and education?
The welfare of the minor child is the paramount consideration, encompassing physical, moral, and ethical well-being, which overrides the statutory rights of the parents under any statute in force. (Para 18 , 19 )
7. How does Parental Alienation Syndrome influence decisions regarding a child's living environment?
When embittered parental discord and alienation cause a child psychological distress, the court may determine that removing the child from the toxic home environment to a neutral setting, such as a boarding school, is necessary for their healthy growth and welfare. (Para 16 , 17 , 20 )
8. Is there a fixed legal formula for deciding if a child should be placed in a boarding school?
No fixed formula exists. Every case must be examined on its own facts and merits to determine what is in the best interest of the child, as the appropriate solution depends on the specific circumstances of each case. (Para 21 , 22 )
JUDGMENT :
ASHOK BHUSHAN, J.
Leave granted.
2. The appellant aggrieved by the judgment dated 26.04.2018 passed by a Division Bench of the High Court of Jharkhand at Ranchi has come up in these appeals. The impugned judgment of the High Court was passed in First Appeal No.59 of 2016 filed by the appellant and First Appeal No.68 of 2016 filed by the respondent both challenging the order dated 31.03.2016 passed by the Principal Judge, Family Court, Jamshedpur in Guardianship Case No.11 of 2012 filed by the respondent under Sections 7 and 12 of the Guardian and Wards Act, 1890.
3. The brief facts and circumstances giving rise to these appeals are:
3.1 The appellant and the respondent were married in the year 2003. There has been matrimonial dispute between the parties since the year 2006. A girl child was born to the appellant and the respondent on 09.04.2007, named as Aditi. The appellant filed complaint against the husband before various authorities, employer of the respondent as well as National Human Rights Commission. A petition for seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 was filed by the respondent at Bengaluru where the respondent was residing. In the year 2008, the appellant lodged FIR against the respondent under Section 498A of the IPC being Case No.204 of 2008. In the year 2008, the respondent filed an application for seeking a decree of divorce before the Family Court, Bengaluru which was registered as Matrimonial Case No.3358 of 2008.
3.2 The respondent filed an application before the High Court of Jharkhand at Ranchi seeking anticipatory bail in connection with Kadma PS Case No.204 of 2008 in which case parties were referred to mediation and conciliation to amicably resolve their issues. On 11.09.2009, the Principal Judge, Family Court at Bengaluru granted ex parte decree of divorce dated 11.09.2009. During the pendency of the Anticipatory Bail Application being No.518 of 2009, the parties amicably settled all their disputes before Jharkhand Legal Services Authority. A Settlement dated 19.12.2009 between the parties was communicated to the High Court. As per the terms of the settlement, the respondent agreed to pay an amount of Rs.5,00,000/- as permanent alimony to the appellant. Further, the respondent agreed to deposit a sum of Rs.5,00,000/- in the name of Aditi for her all time maintenance. The appellant further agreed not to challenge ex parte divorce decree. The appellant also agreed to allow the respondent to meet their child once in every two months starting from January, 2010. The High Court disposed of the matter in terms of the settlement.
3.3 The respondent alleging obstruction by the appellant in his visiting rights filed an application seeking custody of the child, Aditi under Sections 7 and 12 of the Guardian and Wards Act, 1890 at Bengaluru. The said proceedings under Guardian and Wards Act were transferred to Family Court at Jamshedpur under order of this Court dated 27.03.2012. The appellant filed written statement in Guardianship Case No.11 of 2012. The respondent made an amendment application before the Family Court, Jamshedpur praying for an alternative relief for addition of a prayer in his application in Guardianship Case, i.e., for directing the child to be admitted in any reputed residential/boarding school in India at the expenses of the respondent, which amendment application was allowed by an order dated 16.05.2013. The Principal Judge, Family Court by order dated 31.03.2016 decided the Guardianship Case No.11 of 2012. It is to be noted that in the Guardianship proceedings the respondent has given up his claim of the custody of child and confined his case to alternative prayer, i.e., direction to admit the child in a boarding school. The Family Court, Jamshedpur in paragraph 41 of the judgment directed:
"41. Thus, in view of the discussions made above, I come to the conclusion that minor daughter of the petitioner and respondent Aditi Bishaskha Das sha
