Case BriefsSupreme Court

Supreme Court: In the issue relating to custody of a child where the question was as to whether the Counsellor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial, the bench of Abhay Manohar Sapre and UU Lalit, JJ held:

“Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child.”

On general rule of confidentiality in Mediation:

It is true that the process of mediation is founded on the element of confidentiality. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost.

On exception in issue relating to custody of a child:

The Court said that in order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Family Court Rules.

Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child as a child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Stating that record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction, the Court said:

“The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice.”

[Perry Kansagra v. Smriti Madan Kansagra, 2019 SCC OnLine SC 211, decided on 15.02.2019]

Case BriefsHigh Courts

Calcutta High Court: A Single Judge Bench comprising of Sahidullah Munshi, J. allowed an application under Section 24 CPC for transfer of a child custody case arising out of Section 7, 8 and 25 of the Guardians and Wards Act, 1890.

The application was filed by the mother of the child for transfer of the case from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. The petitioner was married to the respondent. In 2016, she filed a complaint against the petitioner under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act. The respondent filed an application for custody of the child born from the wedlock under Sections 7, 8, and 25 of the Guardians and Wards Act. Subsequently, the petitioner filed the present petition.

The High Court perused Section 9 of the Act of 1890 and observed that territorial jurisdiction of the court in matters of guardianship applications lie where the child ordinarily resides. In the present case, based on the facts, it was clear that the child ordinarily resided with the mother at Paschim Medinipur. The Court was of the view that the child could not be expected to travel 100 km to Alipore on every date of hearing. In such circumstances and in view of Section 9, the Court held that it would be appropriate to transfer the proceedings from the Court of District Judge, Alipore to the Court of District Judge, Paschim Medinipur. Orders were made accordingly. The petition was, thus, allowed. [Ruhi Sahina v. Syed Masidur Rahman, 2018 SCC OnLine Cal 5758, dated 28-08-2018]

Case BriefsDistrict Court

Tis Hazari Court, Delhi (Family Court): The Bench of Reema Singh Nag, Additional Principal Judge dismissed a custody petition filed by a mother of 2 minor children against their father living in the United States of America.

As per the factual matrix of the case, the petitioner (mother) and the respondent (father) are both citizens of USA. They married in the year 2006 in New York as per US Civil Laws. The matrimonial home of the couple is in Connecticut. Both are dentists and have their joint dental practice in Stamford, Connecticut. Two children were born to the couple from the wedlock, both of whom are US citizens. There was a matrimonial discord between the couple. The petitioner alleged various counts of mental and physical harassment against the respondent; while the respondent denied the same and contra-alleged that the petitioner suffered from borderline personality disorder. The couple visited India in January 2016 to attend a wedding; they were scheduled to return in March 2016 but the petitioner refused to return. Subsequently, the respondent obtained a custody order from the US courts for both the kids and also filed a writ of habeas corpus before the Delhi High Court which was allowed. The habeas corpus order was challenged by the petitioner in the Supreme Court which matter is pending awaiting the decision on the instant petition.

The Family Court on detailed appreciation of the evidence and the law on the subject decided the issues in favour of the respondent and dismissed the petition. While so adjudicating, the Court discussed and made observations on various issues. The observations so made (inter alia) are delineated,  hereinafter:

  • Simply by taking oath of allegiance to the Constitution of India and applying for Indian citizenship, the petitioner could not invoke jurisdiction of the instant Court.
  • Court could not assist in breach of immigration law by the petitioner, the Court lacked jurisdiction under Section 9 of Guardian and Wards Act, 1956.
  • It was for the petitioner to prove that the respondent was an unfit person for custody of the children, she failed to do so.
  • The parties need to go for periodical expert counselling to learn to behave in presence of kids, for their healthy and natural growth.
  • The civil marriage under US law had its legal consequence and cannot be dissolved under Hindu Marriage Act, 1955 unless approved by the USA through judicial verdict.
  • K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1  does not deal with the guardianship issue. It cannot be extended to imply that a parent subsumes autonomy of the child in the form of guardianship.
  • Every child fits in the definition of best interest of the child as stipulated under Section 2(9) of the Juvenile Justice (Care and Protection of Children) Act, 2015 since any decision in derogation of this definition would be harmful for the child.
  • Convention on Rights of Child requires that best interest of the child has to be primary consideration in all actions concerning him (Article 3); State is to ensure that no child is separated from parents accept under law (Article 9); and hearing is to be given to the child for weighing his wish according to his age and maturity (Article 12).
  • It is imperative that a child is exposed to nurture by both mother and father equally for his holistic development.
  • Personal development during cognitive ages of a child is sustained upon the bedrock of strong unit of sustained co-operative parenthood.

In the facts and circumstances of the case, the Court was of the view that the paramount welfare of the kids lies in shared parenting in the United States of America. It was held that the petitioner was not entitled to permanent and sole custody of the children. In view of the above, the custody petition was dismissed by the Court. [Jasmeet Kaur v. Navtej Singh,2018 SCC OnLine Fam Ct (Del) 1, dated 20-08-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. dismissed an appeal filed against the order of the Family Court whereby interim custody of a minor child was refused to his father.

The appellants were the father and paternal grandparents of the minor child, aged 8 years, concerned in this matter.  The appellant was married to the deceased. A son was born to them within the wedlock. The deceased committed suicide by hanging and an FIR was registered against the appellants. In a petition filed by the respondent – maternal grandparents of the child, interim custody of the minor child was handed over to them. Further, the Family Court, vide the order impugned, declined the interim custody of the child to the appellants. The present appeal was filed under Section 19 of the Family Courts Act.

The High Court carefully examined the order impugned and found no infirmity in it. The Court took into account the fact recorded by the Family Court that the child was not comfortable with the appellants and had refused to meet or talk to them. He even started to weep after seeing his father. The Family Court further recorded that respondents were looking properly after the child and providing him good education. Furthermore, the Family Court recognized that if the child continues to meet with his father under the supervision of family counsellor, it would remove bad feelings in mind of the child against his father. The High Court was of the view that the Family Court made all efforts so that the child may become comfortable with his father before a final review in the matter is taken up. Accordingly, the appeal filed was held to be sans merit and it was, thus, dismissed. [Vijay Kumar Jha v. Shailender Kumar Jha, 2018 SCC OnLine Del 10721, dated 31-07-2018]

Case BriefsSupreme Court

Supreme Court: Setting aside the Delhi High Court order where a father was directed to hand over the custody of his 5-year-old son to his mother, the bench of Dipak Misra, CJ and Amitava Roy, J held that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.

Considering the facts of the case where the child was barely 2½ years old when he came over to India and had stayed with his father since then, the Court said that since he has stayed in US in his infant years, the duration is too little for the required integration of his with the social, physical, psychological, cultural and academic environment of US to get totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back.

Hence, the verdict that was penned by Roy, J said:

“a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.”

The Court also took note of the fact that no material was brought on record, persuasive and convincing enough, to take a view that immediate restoration of the custody of the child to the mother in the native country is obligatorily called for in its interest and welfare.

The Court noticed that the child is growing in a congenial environment in the loving company of his grand-parents and other relatives and has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.

The Court, hence, directed that the child, till he attains majority, ought to continue in the custody, charge and care of his father. [Prateek Gupta v. Shilpi Gupta, 2017 SCC OnLine SC 1421, decided on 06.12.2017]

Case BriefsHigh Courts

Chhattigarh High Court: A Division Bench of the High Court recently decided a case filed under Section 47 of the Guardians and Wards Act, 1890 read with Section 19(1) of the Family Courts Act, 1984 against the order of the Family Court allowing the respondent wife’s application for custody of minor girl child of both the parties.

The parties married 7 years ago and 2 girls, Ashtha and Sakshi were born during the wedlock and on account of giving birth to two girls, wife was being harassed by her in-laws and one day, was kicked out of her matrimonial home with only Ashtha and Sakshi was left with the husband. The husband denied giving the custody of Sakshi to wife alleging that if the child stays with her mother, she too would become characterless like her. However, no such allegation could be proved in the Family Court.

The respondent contended that her father had enough money to teach both her daughters and the elder daughter was being brought up quite well. During this course, the Family Court interacted with the younger daughter and found out that the young girl was intelligent and communicative and further observed that a child should not suffer for the fault of parents as she is not an inanimate object who can be handed over from one parent to another and said a child must not suffer when parents are fighting. The lower court ordered that child would be able to meet the mother occasionally to which as the wife states, the husband did not comply and later on, the the custody was handed over to mother i.e. respondent.

It was informed to the Court that he had already filed a divorce petition and wife apprehended that he might remarry after divorce and the, the minor girl would be left at the mercy of step-mother. The Supreme Court observed that in dispute pertaining to custody of minor, Courts should keep in mind the paramount interest of the minor and referred to a recent judgment of Apex Court in Purvi Mukesh Gada v. Mukesh Popatlal Gada, (2017) 8 SCC 819 stating that the High Court must ascertain about the welfare of the child before passing the order regarding custody of a child.

The Bench comprising Prashant Kumar Mishra and Arvind Singh Chandel, JJ. noted that it is important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years and at this stage of life, a girl child would need her natural mother the most. Finally, the Court held that the appeal is liable to be dismissed the trial court is fully justified in directing handing over custody of the girl child to mother. [Balram v. Sushma, 2017 SCC OnLine Chh 1247, decided on 08.11.2017]

Case BriefsHigh Courts

Bombay High Court: While deciding a matter concerning the custody of minor girl where it was contended by the petitioner father that he should be given custody of the child as her mother was not financially sound enough to raise the child,  the Divisional Bench of Anuja Prabha Desai and A.S. Oka, JJ. held that there was no evidence that the mother neglected the child or deprived her of necessities and physical comforts in absence of which only on the basis of strong financial position the father cannot get the custody of the child.

In the said case it was also contended by the petitioner that the mother’s home was not conducive for child’s upbringing, as the conduct of child`s mother who had taken divorce twice was unsuitable for minor child. The Court did not find this issue as a detrimental factor in deciding the issue of entrustment of child.

The Court also observed that there was no elderly female member in the house of petitioner father or other children in the age group of the child to take care of the child or to provide her company, under such circumstances disturbing custody of child would cause mental stress and psychological trauma to child. [Shrirang Purushottam Deshmukh v. Radhika Shrirang Deshmukh, 2016 SCC OnLine Bom 10582, decided on 14-12-2016]