1. Custody dispute of minor children under the Guardian and Wards Act, 1890, involving competing claims for permanent and shared custody following matrimonial discord. (Para 2 , 3 )
Back
Next 
2024 Supreme(SC) 439
SUPREME COURT OF INDIA
VIKRAM NATH, SATISH CHANDRA SHARMA, JJ.
Col. Ramneesh Pal Singh – Appellant
Versus
Sugandhi Aggarwal – Respondent
Civil Appeal No. 6137 of 2024, Arising Out of SLP (C) No. 28466 of 2023
Decided On : 08-05-2024
Advocates appeared:
For the Petitioner(s): Mr. Prabhas Bajaj, AOR
For the Respondent(s): Ms. Vandana Sehgal, AOR Mr. Mohit Yadav, Adv.
For the Petitioner(s): Mr. Prabhas Bajaj, AOR
For the Respondent(s): Ms. Vandana Sehgal, AOR Mr. Mohit Yadav, Adv.
IMPORTANT POINT
Custody of minor children – Principal consideration of Court whilst deciding application for guardianship under Act in exercise of its parens patriae jurisdiction would be welfare of minor children – Stability of surrounding(s) of Minor Children is also a consideration to be weighed appropriately.
Headnote:
(A) Guardians and Wards Act, 1890 – Sections 7, 9, 17 and 25 – Shared custody of minor children – Grant of – Up until this stage, custody of Minor Children has essentially remained with Appellant – Principal consideration of Court whilst deciding application for guardianship under Act in exercise of its parens patriae jurisdiction would be welfare of minor children – Stability of surrounding(s) of Minor Children is also a consideration to be weighed appropriately – Single Judge found Minor Children to be confident and well-groomed – No overt preference was indicated by Minor Children in respect to one parent over other – Minor Children were doing well in pursuit of their education and co-curricular activities whilst residing with Appellant – Court found Minor Children to be intelligent, confident, cognisant of pros and cons of their decisions and most importantly content /happy – Minor Children expressed their clear desire to reside with Appellant – Indian Armed Forces provides a robust support system to kin of its officer(s) so as to ensure minimal disruption in lives of civilian member(s) of an officer’s family – High Court has failed to appreciate intricacies and complexities of relationship between parties and proceeded to entertain allegations of Parental Alienation Syndrome (PAS) on an unsubstantiated basis – Impugned Order of High Court set aside – Custody of Minor Children is to be retained by Appellant, subject to visitation rights of Respondent as granted by Family Court.(Paras 8, 12, 13.1, 13.2, 13.3, 13.4, 16, 26, 27 and 28)
(B) Parental Alienation Syndrome (PAS) – PAS is a thoroughly convoluted and intricate phenomenon that requires serious consideration and deliberation – Recognising and appreciating repercussions of PAS certainly shed light on realities of long-drawn and bitter custody and divorce litigation(s) on a certain identified sect of families – Courts ought not to prematurely and without identification of individual instances of ‘alienating behaviour’, label any parent as propagator and / or potential promoter of such behaviour – Such label has far-reaching implications which must not be imputed or attributed to an individual parent routinely – Courts must endeavour to identify individual instances of ‘alienating behaviour’ in order to invoke principle of parental alienation so as to overcome preference indicated by minor children. (Paras 20, 22 and 23)
Facts of the case:
Vide Impugned Order High Court partly allowed appeal preferred by Respondent against an order dated 22.08.2020 passed by Family Court, whereby Family Court granted permanent custody of minor children to Appellant and provided visitation rights to Respondent. Vide Impugned Order, High Court set aside Underlying Order and accordingly granted parties shared custody of Minor Children.
Findings of Court:
High Court was neither correct nor justified in interfering with the well-considered and reasoned order passed by Family Court granting custody of Minor Children to Appellant.
Result : Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Father asserts children's preference and stability; Mother alleges parental alienation syndrome and argues for the necessity of maternal presence for the children's welfare. (Para 4 , 5 )
3. The court found the children's consistent preference and happiness with the father outweighing unsubstantiated allegations of parental alienation syndrome lacking specific evidence of alienating behavior. (Para 6 , 7 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 24 , 25 )
4. Child welfare is paramount; intelligent preference is a key factor, and parental alienation requires proof of specific alienating behaviors rather than a general diagnosis. (Para 8 , 9 , 10 , 11 , 12 , 23 )
5. Appeal allowed; High Court order set aside and Family Court order granting custody to the father restored, subject to the mother's visitation rights. (Para 26 , 27 , 28 )
6. What is the primary consideration when determining the custody of a minor child?
The paramount consideration is the welfare and well-being of the child, encompassing physical, moral, ethical, and intellectual development, as well as the child's intelligent preference if they are old enough. (Para 8 , 9 , 10 , 11 , 12 )
7. How should courts treat the preference expressed by a minor child in custody proceedings?
While not determinative, the preference of a child old enough to form an intelligent judgment must be given due consideration as a factor of utmost importance in determining their welfare. (Para 9 , 13 , 14 )
8. What is the legal standard for establishing Parental Alienation Syndrome (PAS) in custody cases?
PAS should not be applied as a generic label. Courts must identify specific instances of alienating behavior and their impact on the child's relationship with the other parent to invoke this principle. (Para 20 , 21 , 22 , 23 )
9. Does the nature of a parent's employment, such as military service, negatively impact the welfare of the child?
Not necessarily; the court noted that the Indian Armed Forces provide a robust support system, including housing, schools, and healthcare, which can aid a child's growth and development. (Para 16 )
Introduction
1. Leave granted.
2. The present appeal preferred by the Appellant seeks to assail the correctness of an order dated 11.10.2023 passed by a Division Bench of the High Court of Delhi at New Delhi (the “High Court”) in M.A.T. APP (F.C.) 132 of 2020 (the “Impugned Order”). Vide the Impugned Order the High Court partly allowed the appeal preferred by the Respondent against an order dated 22.08.2020 passed by the Learned Family Court, West, Tis Hazari Court (the “Family Court”) in GP No. 45/17 (Old GP No. 75 of 2015) whereby the Family Court granted permanent custody of minor children to the Appellant and provided visitation rights to the Respondent (the “Underlying Order”). Pertinently, vide the Impugned Order, the High Court set aside the Underlying Order and accordingly granted the parties shared custody of the Minor Children (defined below).
Factual Background
3. The facts and proceedings germane to the contextual understanding of the present lis, are as follows:
3.1. The marriage between (i) the Appellant i.e. now serving as a Colonel in the Indian Armed Forces presently posted at Jalandhar, Punjab and (ii) the Respondent i.e. now employed as a teacher in Delhi Public School, Gurugram - was solemnized on 22.12.2002 at Delhi, in accordance with Hindu/Sikh rites and rituals. Two minor children were born out of the wedlock i.e. (i) a 15 (fifteen) year old daughter (hereinafter “SSU”) and (ii) a 12 (twelve) year old son (hereinafter “SSH”) (hereinafter, SSU and SSH shall collectively be referred to as the “Minor Children”).
3.2. In December 2013, the Appellant having been promoted to the rank of Colonel in the Indian Armed Forces, was posted to serve in the Jammu and Kashmir. Accordingly, it was decided that the Respondent together with the Minor Children would reside in New Delhi. The relationship between the Parties deteriorated significantly and thereafter took a turn for the worst on 08.08.2015, forcing the Respondent to leave the matrimonial home for 1 (one) night. Upon returning the next day i.e. 09.08.2015, the Respondent found the residence locked, and the Appellant along with the Minor Children unavailable at aforesaid residence.
3.3. The Respondent was constrained to file (i) a missing children’s report on 19.08.2015; and thereafter (ii) an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (the “DV Act”) on 17.08.2015. Subsequently, the Respondent learnt that the Minor Children along with the Appellant were residing in Gulmarg, Jammu and Kashmir and were scheduled to move to Bikaner, Rajasthan in furtherance of the nature of the Appellant’s service. Aggrieved, the Respondent filed a petition under Section 7, 9 and 25 of the Guardian and Wards Act, 1890 (the “Act”) before the Family Court seeking custody of the Minor Children on 21.11.2015. On the other hand, the Appellant filed a similar petition seeking custody of the Minor Children before the Learned Principal Jude, Family Court, Bikaner, Rajasthan.
3.4. This Court vide an order dated 29.03.2017, transferred the custody petition filed by the Appellant before the Learned Principal Jude, Family Court, Bikaner, Rajasthan to the Family Court in Delhi. Thereafter, vide an order dated 16.10.2017, the Family Court granted interim custody of the Minor Children to the Respondent (the “Interim Custody Order”). Aggrieved, the Respondent preferred an Appeal before the High Court. Vide an order dated 06.12.2017, the High Court initially stayed the operation of the Interim Custody Order; thereafter vide an order dated 19.04.2018 granted the Respondent custody of the Minor Children on alternative weekends; and finally vide an order dated 01.10.2019, dismissed the appeal and vacated the interim orders observing inter-alia that the appeal was not maintainable.
3.5. Aggrieved, the Appellant preferred a writ petition under Article 227 of the Constitution of India before the High Court challenging the correctness of the Interim Custody Order
