CORRECTED
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C.) NO.25098/2019
DSG …PETITIONER
versus
AKG …RESPONDENT
ORDER
INDU MALHOTRA, J.
1. The present Special Leave Petition has been filed by the
Petitioner – mother to challenge the 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.
1
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.
2
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
3
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 held that the child has expressed her
unequivocal desire to live only with the father. She denied the
allegations of sexual abuse by the father. The Court held that
the child seemed to be very happy in the presence of the father,
and that there shall be no change in the interim custody of the
minor.
13. The Petitioner – mother challenged the Order dated 16.11.2018
passed by the Family Court before the High Court in MAT. APP
(F.C.) 312/2018.
14. During the pendency of the Appeal before the High Court, the
Petitioner – mother filed an Application u/S. 151 CPC before the
Family Court seeking custody of the minor daughter during the
vacations for 15 days.
15. The Family Court vide Order dated 27.02.2019 granted custody
of the daughter to the Petitioner – mother from 28.02.2019 to
10.03.2019 for vacations. The Petitioner – mother was directed
4
to make a video call to the father every evening during this
period. The custody of the child was to be handed over to the
Respondent – father on 11.03.2019.
16. On 10.03.2019, the Petitioner – wife sent a text message to the
Respondent – husband that she was in Goa with the minor
daughter, and would return only on 15.03.2019.
17. On 14.03.2019, the Respondent – father filed an Application
u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC
for contempt of the Orders dated 16.11.2018 and 27.02.2019
against the Petitioner – mother before the Family Court, since
the mother had refused to return the custody of the child.
The Family Court took cognizance of noncompliance of
Orders by the Petitioner – mother, and vide Order dated
18.04.2019 directed the SHO, PS Rajouri Garden to locate the
whereabouts of the minor daughter, and produce her before the
Court.
18. The minor daughter was found at the residence of the
Petitioner – mother, and was produced before the Family Court
on 23.04.2019, when custody was handed over to the
Respondent – father.
19. The Family Court vide Order dated 23.04.2019 suspended the
visitation rights granted to the Petitioner – mother till the next
date of hearing.
20. By a subsequent Order dated 03.05.2019, the Family Court
held that further visitation to the Petitioner – mother can be
allowed only in the Childrens’ Room, Tiz Hazari Complex, Delhi,
5
where the mother could meet the child on every working 1 st, 3rd
and 4th Saturday from 3 p.m. to 5 p.m., and on 2nd Friday from
3:30 p.m. to 5 p.m. The father agreed that as per the
convenience of the child, he would allow the mother to see the
child at the school gate in the morning before school hours.
This arrangement of visitation by the mother is continuing
ever since.
21. The High Court vide the impugned Order dated 26.03.2019
dismissed the Appeal filed by the Petitioner – mother, and
confirmed the Orders dated 28.07.2018 and 16.11.2018 passed
by the Family Court.
The High Court held that the three Counsellors Reports
indicated that the child was comfortable in the company of the
father, and wanted to live with him. The Court observed that the
video clippings submitted by the Petitioner – mother do not
prima facie support her allegation of sexual abuse by the father.
The Order dated 26.03.2019 passed by the High Court is
impugned by the Petitioner – mother in the present Special
Leave Petition.
22. This Court took up the present SLP for hearing on 25.10.2019
when Notice was issued. The Petitioner – mother submitted a
DVD containing some video clippings of the child. She placed on
record some additional documents in support of her contention
that the child was being allegedly molested by the Respondent –
father.
6
23. On 05.12.2019, the Respondent – husband appeared before
this Court in person along with his Counsel.
We directed the Respondent father to produce the child
before this Court on 10.12.2019.
24. On 10.12.2019, both the parties and the minor daughter
appeared before us. We individually interviewed both the
parents and the child.
Having interacted with the child, we are of the view that the
minor girl is certainly capable of forming an intelligent
preference regarding her custody.
We found the girl who is over 12 years of age, and 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.
Reliance is placed on the judgment of this Court in Nil
Ratan Kundu & Anr. v. Abhijit Kundu1 that while exercising
parens patriae jurisdiction, the Court is required to give due
weight to the ordinary comfort of the child, contentment,
intellectual, moral and physical development, health, education
and general maintenance, and the favorable surroundings. The
Court is not bound either by statutes, nor by strict rules of
evidence, nor procedure or precedent. In deciding the issue of
1 (2008) 9 SCC 413 : 2008 (11) SCALE 437.
7
custody, the paramount consideration should be the welfare and
wellbeing of the child.
We hereby affirm the Order dated 03.05.2019 passed by the
Family Court granting custody of the minor daughter to the
father, and visitation rights to the Petitioner – mother as
specified in the Order.
The present Order is passed at an intermediate stage of the
proceedings, hence the findings recorded hereinabove are prima
facie in nature.
The Special Leave Petition is disposed of accordingly.
Ordered accordingly.
Pending applications, if any, shall stand disposed of.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
…....………………………….J.
(KRISHNA MURARI)
New Delhi
December 16, 2019.
8
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C.) NO.25098/2019
DSG …APPELLANT
versus
AKG …RESPONDENT
ORDER
INDU MALHOTRA, J.
25. 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.
26. 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.
9
27. 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.
28. 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.
29. 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.
30. 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.
10
31. 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.
32. 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.
33. 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.
34. 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.
35. 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
11
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.
36. 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 held that the child has expressed her
unequivocal desire to live only with the father. She denied the
allegations of sexual abuse by the father. The Court held that
the child seemed to be very happy in the presence of the father,
and that there shall be no change in the interim custody of the
minor.
37. The Petitioner – mother challenged the Order dated 16.11.2018
passed by the Family Court before the High Court in MAT. APP
(F.C.) 312/2018.
38. During the pendency of the Appeal before the High Court, the
Petitioner – mother filed an Application u/S. 151 CPC before the
Family Court seeking custody of the minor daughter during the
vacations for 15 days.
39. The Family Court vide Order dated 27.02.2019 granted custody
of the daughter to the Petitioner – mother from 28.02.2019 to
10.03.2019 for vacations. The Petitioner – mother was directed
12
to make a video call to the father every evening during this
period. The custody of the child was to be handed over to the
Respondent – father on 11.03.2019.
40. On 10.03.2019, the Petitioner – wife sent a text message to the
Respondent – husband that she was in Goa with the minor
daughter, and would return only on 15.03.2019.
41. On 14.03.2019, the Respondent – father filed an Application
u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC
for contempt of the Orders dated 16.11.2018 and 27.02.2019
against the Petitioner – mother before the Family Court, since
the mother had refused to return the custody of the child.
The Family Court took cognizance of noncompliance of
Orders by the Petitioner – mother, and vide Order dated
18.04.2019 directed the SHO, PS Rajouri Garden to locate the
whereabouts of the minor daughter, and produce her before the
Court.
42. The minor daughter was found at the residence of the
Petitioner – mother, and was produced before the Family Court
on 23.04.2019, when custody was handed over to the
Respondent – father.
43. The Family Court vide Order dated 23.04.2019 suspended the
visitation rights granted to the Petitioner – mother till the next
date of hearing.
44. By a subsequent Order dated 03.05.2019, the Family Court
held that further visitation to the Petitioner – mother can be
allowed only in the Childrens’ Room, Tiz Hazari Complex, Delhi,
13
where the mother could meet the child on every working 1 st, 3rd
and 4th Saturday from 3 p.m. to 5 p.m., and on 2nd Friday from
3:30 p.m. to 5 p.m. The father agreed that as per the
convenience of the child, he would allow the mother to see the
child at the school gate in the morning before school hours.
This arrangement of visitation by the mother is continuing
ever since.
45. The High Court vide the impugned Order dated 26.03.2019
dismissed the Appeal filed by the Petitioner – mother, and
confirmed the Orders dated 28.07.2018 and 16.11.2018 passed
by the Family Court.
The High Court held that the three Counsellors Reports
indicated that the child was comfortable in the company of the
father, and wanted to live with him. The Court observed that the
video clippings submitted by the Petitioner – mother do not
prima facie support her allegation of sexual abuse by the father.
The Order dated 26.03.2019 passed by the High Court is
impugned by the Petitioner – mother in the present Special
Leave Petition.
46. This Court took up the present SLP for hearing on 25.10.2019
when Notice was issued. The Petitioner – mother submitted a
DVD containing some video clippings of the child. She placed on
record some additional documents in support of her contention
that the child was being allegedly molested by the Respondent –
father.
14
47. On 05.12.2019, the Respondent – husband appeared before
this Court in person along with his Counsel.
We directed the Respondent father to produce the child
before this Court on 10.12.2019.
48. On 10.12.2019, both the parties and the minor daughter
appeared before us. We individually interviewed both the
parents and the child.
Having interacted with the child, we are of the view that the
minor girl is certainly capable of forming an intelligent
preference regarding her custody.
We found the girl who is over 12 years of age, and 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.
Reliance is placed on the judgment of this Court in Nil
Ratan Kundu & Anr. v. Abhijit Kundu2 that while exercising
parens patriae jurisdiction, the Court is required to give due
weight to the ordinary comfort of the child, contentment,
intellectual, moral and physical development, health, education
and general maintenance, and the favorable surroundings. The
Court is not bound either by statutes, nor by strict rules of
evidence, nor procedure or precedent. In deciding the issue of
2 (2008) 9 SCC 413 : 2008 (11) SCALE 437.
15
custody, the paramount consideration should be the welfare and
wellbeing of the child.
We hereby affirm the Order dated 03.05.2019 passed by the
Family Court granting custody of the minor daughter to the
father, and visitation rights to the Petitioner – mother as
specified in the Order.
The present Order is passed at an intermediate stage of the
proceedings, hence the findings recorded hereinabove are prima
facie in nature.
The Special Leave Petition is disposed of accordingly.
Ordered accordingly.
Pending applications, if any, shall stand disposed of.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
…....………………………….J.
(KRISHNA MURARI)
New Delhi
December 16, 2019.
16
