2011 Supreme(Mad) 1572

2011 (2) CTC 736, 2011 (4) MLJ 494
High Court of Judicature at Madras
V. RAMASUBRAMANIAN
S. Anand @ Akash
Versus
Vanitha Vijaya Kumar & Another
A.No.248 of 2011 in O.P.No.12 of 2011
Decided on : 21-03-2011

The intelligent preference of a minor child cannot be the controlling factor in determining custody, and the weight to be accorded to the preference of the minor depends upon various other factors, including the child's age and maturity, whether the objection has been shaped or coloured by undue influence or pressure, and whether the objections result solely from a desire to remain with the abducting parent.

Headnote:

CHILD CUSTODY - [KEYWORD] - GUARDIANS AND WARDS ACT, 1890 - SECTIONS 7 AND 25 - INTERIM PROTECTION ORDER - CUSTODY OF MINOR SON - CHANGE OF CIRCUMSTANCES - INTEREST AND WELFARE OF THE CHILD - PARENTAL RESPONSIBILITY - INTELLIGENT PREFERENCE - PSYCHIATRIC ASSESSMENT - AUTHORITATIVE PARENTING STYLE - PERMISSIVE PARENTING STYLE - INTERIM ARRANGEMENT.

Fact of the Case:

The petitioner, the biological father of the minor children, filed an application under Sections 7 and 25 of the Guardians and Wards Act, 1890, seeking an interim protection order to retain the custody of their minor son. The first respondent, the biological mother, had filed a petition for divorce, which was later dismissed as not pressed, and both parties filed for dissolution of their marriage by mutual consent. A decree of divorce by mutual consent was passed, recording that the petitioner would have the custody of the minor son and the first respondent would have the custody of the daughter. After the divorce, the first respondent married the second respondent and had a girl baby. Disputes arose between the petitioner and the first respondent over the custody of the minor son, leading to the filing of HCP No.730 of 2008, which was closed after the custody of the minor son was restored to the petitioner. The first respondent filed FCOP No.193 of 2008 seeking permanent custody of the minor son, which was allowed by the Family Court, Secunderabad, on the basis of a letter, memo, and affidavit sent by the petitioner expressing his agreement to the first respondent having the custody of the child. The first respondent claimed that certain untoward incidents took place in her parental home, affecting the children adversely, and that the petitioner abducted the minor son. The petitioner filed two applications before the Family Court, Secunderabad, praying for setting aside the final order passed in FCOP No.193 of 2008 and restoring the custody of the minor son to him, and for permission to engage a counsel. These applications were returned for presentation before the appropriate Court. The petitioner then filed the present original petition under Sections 7 and 25 of the Guardians and Wards Act, 1890, contending that in child custody matters, an order of a competent Court could always be modified on the ground of change of circumstances. The first respondent opposed the petition on the grounds of estoppel and that the order of the Division Bench in the Habeas Corpus petition could not be challenged.

Finding of the Court:

The Court held that the plea of estoppel was not available in relation to child custody cases due to the paramount interest and welfare of the child. The Court also held that the order of the Division Bench was not final and conclusive, and that it was open to the petitioner to work out his remedies before the appropriate Forum. The Court further held that there were sufficient change of circumstances, justifying the petitioner's action in seeking a modification of the order of the Family Court, Secunderabad, including the respondents' relocation to New Zealand and back to India, the birth of a girl baby to the first respondent out of the second marriage, and the strained relationship between the first respondent and her parents. The Court also held that both parties were not disqualified from having the custody of the minor child, and that it was their duty to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment. The Court further held that the intelligent preference of the minor could not be the controlling factor in determining custody, and that the weight to be accorded to the preference of the minor depended upon various other factors. The Court also held that the preference made by the child may be influenced by a permissive attitude on the part of the retaining parent, and that it was the duty of the Court to ignore such preference. The Court also held that the objections of a child to being returned to a particular carer or to a particular regime of contact with a feared parent had to be tested on the touchstone of the child's age and degree of maturity, whether the objection had been shaped or coloured by undue influence or pressure, and whether the objections resulted solely from a desire to remain with the abducting parent.

Issues: 1. Whether the plea of estoppel was available in relation to child custody cases? 2. Whether the order of the Division Bench was final and conclusive? 3. Whether there were sufficient change of circumstances, justifying the petitioner's action in seeking a modification of the order of the Family Court, Secunderabad? 4. Whether both parties were disqualified from having the custody of the minor child? 5. Whether it was the duty of the parties to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment? 6. Whether the intelligent preference of the minor could be the controlling factor in determining custody? 7. Whether the weight to be accorded to the preference of the minor depended upon various other factors? 8. Whether the preference made by the child may be influenced by a permissive attitude on the part of the retaining parent? 9. Whether it was the duty of the Court to ignore such preference? 10. Whether the objections of a child to being returned to a particular carer or to a particular regime of contact with a feared parent had to be tested on the touchstone of the child's age and degree of maturity, whether the objection had been shaped or coloured by undue influence or pressure, and whether the objections resulted solely from a desire to remain with the abducting parent?

Ratio Decidendi: 1. The plea of estoppel is not available in relation to child custody cases due to the paramount interest and welfare of the child. 2. The order of the Division Bench was not final and conclusive, and it was open to the petitioner to work out his remedies before the appropriate Forum. 3. There were sufficient change of circumstances, justifying the petitioner's action in seeking a modification of the order of the Family Court, Secunderabad, including the respondents' relocation to New Zealand and back to India, the birth of a girl baby to the first respondent out of the second marriage, and the strained relationship between the first respondent and her parents. 4. Both parties were not disqualified from having the custody of the minor child. 5. It was the duty of the parties to draw up a parenting schedule and share the responsibility of co-parenting to bring up the child in a healthy and happy environment. 6. The intelligent preference of the minor could not be the controlling factor in determining custody. 7. The weight to be accorded to the preference of the minor depended upon various other factors. 8. The preference made by the child may be influenced by a permissive attitude on the part of the retaining parent. 9. It was the duty of the Court to ignore such preference. 10. The objections of a child to being returned to a particular carer or to a particular regime of contact with a feared parent had to be tested on the touchstone of the child's age and degree of maturity, whether the objection had been shaped or coloured by undue influence or pressure, and whether the objections resulted solely from a desire to remain with the abducting parent.

Final Decision: The Court allowed the petition and granted interim protection to the petitioner by directing that the child be handed over to the first respondent every Friday evening and be returned to the petitioner on Monday morning. The Court also directed that if the child refused to go to the respondents' house, the petitioner should take the child to a Child Psychologist for a smooth transition.