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2020 Supreme(Del) 1258
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. Sistani, Jyoti Singh, JJ.
Smriti Madan Kansagra - Appellant
Versus
Perry Kansagra - Respondent
Matrimonial Appeal (F C) No. 30 of 2018; Civil Miscellaneous Application No. 49507 of 2018
Decided On : 25-02-2020
Prosenjeet Banerjee, Advocate, Mansi Sharma, Advocate, Shreya Singhal, Advocate, Inderjeet Swaroop, Advocate, Anunaya Mehta, Advocate, Raghav Swaroop, Advocate
In matters of child custody, the paramount consideration is the welfare and best interests of the child.
Headnote:
In a Guardianship Petition filed by the father seeking declaration as the guardian of his minor child, the Family Court granted the petition and declared the father as the guardian of the child. The mother appealed the decision, arguing that the Family Court erred in its findings and that the best interests of the child were not considered. The High Court analyzed the evidence and submissions of both parties and came to the conclusion that the Family Court's decision was justified. The High Court found that the father was a more suitable guardian for the child, considering factors such as his financial stability, the child's bond with him, and the mother's attempts to alienate the child from the father. The High Court also emphasized the importance of considering the child's welfare and best interests as the paramount consideration in such cases.
Fact of the Case:
The appellant (mother) and respondent (father) were married in 2007 and had a son in 2009. After the birth of the child, the mother returned to Nairobi, Kenya, while the father remained in New Delhi, India. The mother filed a civil suit in India seeking permanent injunction against the father from removing the child from her custody and restraining him from meeting the child without her consent. The father filed a Guardianship Petition before the Family Court seeking declaration as the legal guardian of the child. The Family Court granted the petition and declared the father as the guardian of the child. The mother appealed the decision to the High Court.
Finding of the Court:
The High Court found that the Family Court's decision was justified. The High Court considered factors such as the father's financial stability, the child's bond with him, and the mother's attempts to alienate the child from the father. The High Court also emphasized the importance of considering the child's welfare and best interests as the paramount consideration in such cases.
Issues: 1. Whether the Family Court erred in its findings and that the best interests of the child were not considered. 2. Whether the father was a more suitable guardian for the child, considering factors such as his financial stability, the child's bond with him, and the mother's attempts to alienate the child from the father.
Ratio Decidendi: The High Court held that the Family Court's decision was justified. The High Court found that the father was a more suitable guardian for the child, considering factors such as his financial stability, the child's bond with him, and the mother's attempts to alienate the child from the father. The High Court also emphasized the importance of considering the child's welfare and best interests as the paramount consideration in such cases.
Final Decision: The High Court dismissed the mother's appeal and upheld the Family Court's decision granting the father custody of the child.
JUDGMENT
G.S. Sistani, J. - By this application, the appellant had sought a direction to the respondent for producing the chargesheet in CMCR 997/2018 titled Republic v. Perry Mansukh Kansagra & Ors. The application was heard on 20.12.2018 and it was decided that the application would be taken up for hearing along with the appeal.
2. During the pendency of the appeal, the appellant has filed a certified copy of the chargesheet with Diary No.141190 and the effect of the criminal proceedings has been noticed by us in our detailed judgment. As such, no further orders are required to be passed in the application and it is, accordingly, disposed of.
3. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 impugning the judgment dated 12.01.2018 passed by the Principal Judge, Family Courts, Saket (''Family Court'') whereby the petition filed by the respondent/father seeking guardianship of his minor child, Aditya Vikram Kansagra has been allowed. The Family Court has declared the respondent/father as the guardian of the child and the appellant/mother was directed to transfer the custody of Aditya at the end of the academic session of 2017-2018.
4. The necessary facts to be noticed for disposal of the present appeal are that the marriage between the parties was solemnised in New Delhi on 29.07.2007. The appellant is an Indian citizen, while the respondent holds citizenship of Kenya and the United Kingdom. After marriage, the appellant shifted to Nairobi, Kenya and settled into her matrimonial home with the respondent. A son, Aditya was born to the couple on 02.12.2009 at New Delhi. After delivery, the mother returned to Nairobi along with the child. Thereafter, the mother and Aditya travelled from Kenya to India on few occasions. Aditya holds a Kenyan as well as a British passport. During the pendency of the proceedings, the Kenyan passport was misplaced by the appellant.
5. On 10.03.2012, the family came to New Delhi holding return tickets to Nairobi. The appellant claims that the respondent started showing abnormal and belligerent conduct, which led to the filing of a civil suit [CS(OS) 1604/2012] before this Court against the respondent and his parents inter alia seeking permanent injunction against them from removing the child from the custody of the appellant and restraining them from meeting him without the consent of the appellant. On 28.05.2012, interim orders were passed against the respondents restraining them from removing the son from the custody of the appellant. Thereafter, various visitation orders were passed in the matter. The father along with his parents was permitted to meet Aditya for 2 hours on Friday, Saturday and Sunday in the 2nd week of every month. According to the respondent, he flew from Nairobi to New Delhi every month to meet Aditya along with his parents. The matter was ultimately disposed of noticing the pendency of the proceedings under the Guardianship Act as adverted to by us in the next paragraph.
6. In the meantime, the respondent filed a Guardianship Petition before the Family Court bearing G-53/2012 on 06.11.2012 inter alia seeking declaration to be the legal guardian of Aditya, and seeking his permanent custody. The arrangement of visitation was modified by the Family Court by its orders dated 09.02.2016 and 09.03.2016. Thereafter, on 18.04.2016, the respondent filed an application in the Family Court praying that the Family Court may direct the Counsellor to bring the child to the Court for an in-chamber meeting, which was objected to by the appellant. The Family Court allowed the application by an order dated 04.05.2016 and directed the child to be produced before the Court on 07.05.2016.
7. Aggrieved by the order dated 04.05.2016, the appellant filed MAT. APP. (F.C.) 67/2016 before this Court. This Court, by an order dated 06.05.2016, referred the parties to mediation and also directed that Aditya may be produced before the Court on 11.05.2016. Thereafter, this Co
