The court reaffirmed that the welfare of the child is supreme in custody disputes, and parental rights must be secondary to this principle.

JUDGMENT

G.S. Sistani, J.

CM 49507/2018

1. 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.

MAT.APP.(F.C.) 30/2018

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 a