Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 1369

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, KRISHNA MURARI, JJ.
DSG – APPELLANT
Versus
AKG – RESPONDENT
SPECIAL LEAVE PETITION (C.) NO.25098 of 2019
Decided On : 16-12-2019

Advocates Appeared:
For the Petitioner(s):Petitioner-in-person
For the Respondent(s):Nirnimesh Dube, Advocate

IMPORTANT POINT
Custody of minor daughter – Court is not bound either by statutes nor by strict rules of evidence, nor procedure or precedent – In deciding issue of custody, paramount consideration should be welfare and well-being of child.

Headnote:
Hindu Minority and Guardianship Act, 1956 – Section 6 – Custody of minor daughter – Child is now over 12 years and is currently residing with respondent-father – child complained of ill-treatment by mother – Child categorically stated that her father bestowed a lot of affection on her and that he had not committed any wrongful act upon her – Child is studying in Class VII to be articulate and unequivocal about her definite desire to reside with her father – She stated that she received love and affection from her father who was taking care of her food, education and would assist her in her school projects and activities – While exercising Parens Patriae jurisdiction, Court is required to give due weight to ordinary comfort of child, contentment, intellectual, moral and physical development, health, education and general maintenance and favorable surroundings – Court is not bound either by statutes nor by strict rules of evidence, nor procedure or precedent – In deciding issue of custody, paramount consideration should be welfare and well-being of child – Order passed by Family Court granting custody of minor daughter to father and visitation rights to Petitioner-mother, affirmed. (Paras 5, 21 and 24)
Facts of the case:
Present Special Leave Petition has been filed by Petitioner – mother to challenge the Interim Order dated 26.03.2019 passed by the Delhi High Court in Matrimonial Appeal (FC) 312/2018 with respect to the custody arrangement of the minor daughter.
Findings of Court:
Court is not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and wellbeing of child.
Result : Special Leave Petition disposed of.

ORDER

INDU MALHOTRA, J.

1. The present Special Leave Petition has been filed by the Petitioner – mother to challenge the Interim Order dated 26.03.2019 passed by the Delhi High Court in Matrimonial Appeal (FC) 312/2018 with respect to the custody arrangement of the minor daughter.

2. The minor daughter was born on 21.08.2007, and is now over 12 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.

3. On account of the marital discord between the parties, the Respondent – father filed a Guardianship Petition bearing No. G.P. 2266/2018 before the Family Court, Tis Hazari, New Delhi seeking custody of the minor daughter on the ground that the Petitioner – wife was suffering from Paranoid Schizophrenia and required treatment. On account of the mental illness, the Petitioner – wife treated the child with cruelty, and would prevent the father from meeting the child.

4. The Petitioner – mother resisted the Guardianship Petition, and made serious allegations against the father that the minor daughter was being molested by the father, who was guilty of sexual abuse, which made it unsafe for the child to be in his custody.

5. In the Guardianship Petition, the Family Court appointed Mr. Sunil Sachdeva, Counsellor to interact with the child, and submit a Report on her condition. The Counsellor submitted his Report dated 18.07.2018, wherein he has recorded that the child complained of illtreatment by the mother. The child categorically stated that her father bestowed a lot of affection on her, and that he had not committed any wrongful act upon her. She stated that she would like to stay with her father, and wanted 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 Nirmal Chhaya keeping her best interest in mind. She was produced before the Family Court on 19.07.2018.

7. On 19.07.2018, the child was referred by the Family Court to another Counsellor viz. Ms. Himali Anand. This Counsellor vide her Report dated 19.07.2018 recorded that the child made complaints about her mother and stated that she was not taking proper care of her, and would not provide her with proper food, etc. The child stated that her father was taking good care of her, and that she wanted to live with her father only.

8. On 21.07.2018, the Family Court gave custody of the child to the mother till 24.07.2018, after which the custody would be handed over to the father.

9. On 27.07.2018, the mother requested for the appointment of an independent Child Counselor to assess the mental and psychological state of the child, and suggested the name of Dr. Uzma Perveen to be appointed as a Counsellor.

10. The Family Court vide Order dated 28.07.2018 directed Dr. Uzma Perveen to conduct counselling sessions with the child, and submit her Report to the Court.

The Family Court further directed that the child would remain in the custody of the mother from Saturday (after school hours) till Monday 7 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 Perveen held four counselling sessions with the child on 31.07.2018, 07.08.2018, 14.08.2018 and 05.09.2018, and submitted her Report dated 14.09.2018 before the Family Court. The Counsellor after observing the behavior and conduct of the mother, opined that the mother showed symptoms of “Paranoid Schizophrenia”, which required immediate assessment and proper treatment, keeping in mind the welfare of the child. If the mother’s condition remained untreated, it would make the child vulnerable, and would have a lasting psychological impact on the child.

12. The Petitioner – mother filed a Review Petition before the Family Court, Tis Hazari seeking Review of Order dated 28.07.2018.

The Family Court vide Order dated 16.11.2018 dismissed the Review Petition. The Court referred to the reports of the three Counsellors, and hel

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2019 Supreme(SC) 1369

SUPREME COURT OF INDIAUDAY UMESH LALIT, INDU MALHOTRA, KRISHNA MURARI, JJ.DSG – APPELLANTVersusAKG – RESPONDENTSPECIAL LEAVE PETITION (C.) NO.25098 of 2019Decided On : 16-12-2019

IMPORTANT POINTCustody of minor daughter – Court is not bound either by statutes nor by strict rules of evidence, nor procedure or precedent – In deciding issue of custody, paramount consideration should be welfare and well-being of child.

Cases Referred (1)

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, KRISHNA MURARI, JJ.
DSG – APPELLANT
Versus
AKG – RESPONDENT
SPECIAL LEAVE PETITION (C.) NO.25098 of 2019
Decided On : 16-12-2019

IMPORTANT POINT
Custody of minor daughter – Court is not bound either by statutes nor by strict rules of evidence, nor procedure or precedent – In deciding issue of custody, paramount consideration should be welfare and well-being of child.