Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

Counsel for the petitioner-husband stated that the petitioner-father had no access to the children since June 2020. Further, he stated that the petitioner’s father was having health issues and he would like to see his grandchildren.

Needless to state that the Petitioner-father, the non-custodial parent cannot be deprived of his right to spend quality time and enjoy the company of the children. 

High Court held that without going into the merits of the matter, permitted the petitioner-father to have access to the children from 14th April, 2022 to 16th April, 2022.

Considering the nature of the present dispute, the matter was referred for mediation.

Matter to be listed on 21-4-2022 to decide the issue of interim access arrangement. [Gaurav Suresh Tingre v. Priyanka Gaurav Tingre, WP No. 1372 of 2022, decided on 13-4-2022]

Advocates before the Court:

Ajinkya Udane for the petitioner.

Gauri Godse, i/b Rohit Joshi for the respondent.

Case BriefsHigh Courts

Delhi High Court: Upholding the rights of the putative father, V. Kameswar Rao, J., expressed that while determining and granting such rights, more so when the child is of less than 3 years of age, surely his well-being/welfare is of paramount importance.

The petition sought aside, the lower Court’s decision to the extent that the respondent had been granted visitation rights of the minor child for two hours every day.

Trial Court has erred in partially allowing the respondent’s application filed under Section 12 of the Guardian and Wards Act, 1890 read with Sections 6(a) and 6(b) of the Hindu Minority and Guardianship Act, 1956 read with Section 151 Civil Procedure Code, 1908.

Petitioner submitted that the respondent, who was the father of a minor child had admitted himself to be a putative father. The visitation rights were granted on two major grounds i.e., (i) respondent has admitted the paternity of the minor child and; (ii) respondent is residing in the same premises as the minor child and the petitioner albeit on a different floor.

Whether Family Court was justified in allowing the visitation rights of respondent for having access to the minor child for two hours per day?

High Court firstly stated that it cannot be disputed that the respondent being a putative father shall be entitled to visitation rights.

“While determining and granting such rights, more so when the child is of less than three years of age, surely his well-being / welfare is of paramount importance.”

In the present matter, the child was 3 years old.

Ms Geeta Luthra, Senior Advocate submitted that the impugned order disregarded the interest and welfare of the child as it upsets the schedule of the child and the respondent had been taking the child out without following the COVID-19 norms. She added to her submissions that the visitation rights hindered the custodial rights of the petitioner.

Whereas, Ms Revecca M. John, Senior Counsel submitted that the respondent had been taking care of all the needs of the child, h had also taken a sabbatical from work and that the respondent was a primary care giver of the child.

A Coordinate Bench of this Court in the case of Pradeep Santolia v. State WP(Crl.) 3294/2018 held that the child’s ties with father should not be completely and perpetually stopped to ensure a healthy emotional quotient and a robust psychological growth of the child, for which the affection of both the parents would be necessary. 

This Court on noting the tender age of the minor child who was less than 3 years old, modified the impugned order and directed as follows:

I. The visitation hours given to the respondent by the Trial Court for 2 hours daily may not be conducive for the child of that tender age. Appropriate shall be instead of daily, the respondent shall have visitation rights on alternate weekdays i.e., Monday, Wednesday and Friday on which days he will collect the child at 6 PM and return the child to the petitioner at 8 PM on the same day.

II. On Sunday, the respondent shall collect the child from the petitioner at 11 AM and return the child at 5 PM on the same day.

III. The above visitation shall be subject to the respondent residing in the same property i.e., C-99, Defence Colony.

IV. The respondent shall ensure the safety and well-being of the child; and ensure that necessary COVID-19 protocols are maintained and the child is not exposed by non-essential outings to public places. This does not preclude the respondent from taking the child to a nearby park.

V. The respondent shall not take the child out of the territorial limits of the Courts in Delhi.

VI. The respondent shall have unsupervised visitation rights to the child, i.e., the respondent would not be supervised by a nanny, Local Commissioner, etc. However, during visitations, liberty is with the respondent to have his family members present.

VII. The respondent shall also be at liberty to speak / interact with the child through video call / audio call once a day on Tuesdays, Thursdays and Saturdays, in the evenings between 6 PM to 8 PM for not more than 10 minutes.

In view of the above petition was disposed of. [Kinri Dhir v. Veer Singh, 2022 SCC OnLine Del 816, decided on 24-3-2022]

Advocates for the Court:

For the Petitioner:

Ms. Geeta Luthra, Sr. Adv. with Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Mr. Anubhav Singh and Ms. Priyanka Prasanth, Advs.

For the Respondent:

Ms. Rebecca M. John, Sr. Adv. with Ms. Gauri Rishi, Mr. Manav Gupta, Ms. Srishti Juneja, Ms. Garima Sehgal, Mr. Sahil Garg, Mr. Ankit Gupta, Ms. Praavita Kashyp, Advs.

Case BriefsHigh Courts

Chhattisgarh High Court: In a child custody battle, the Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., reiterated the position of law in the Supreme Court’s decision of Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein it was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each, further this Court granted visitation and contact right to the father.

A father of the child had filed an instant appeal against the decision of the Family Court whereby the child’s custody had been ordered to be kept with the mother/respondent.

Factual Matrix

It was stated that at the time of the birth, the child was suffering from a certain ailment, and he had a lump on spinal cord, as such he was not able to discharge his functions including urine, etc., therefore, the child was being treated continuously.

Due to the transferrable jobs, the husband and wife were at different locations, after which the husband started alleging the wife that she was not treating the child properly. Husband filed an application for custody of the child which was decided by the impugned order whereby the father was denied the custody and hence the present appeal was filed.

Analysis, Law and Decision

High Court expressed that, in cases of custody of child, the society values are riddled with contradiction. Though the Courts have never missed the finer points of the paramount issue of welfare of the child.

As per the existing factors, the father’s job involved field work, whereas the mother’s job was of teaching and in order to take care of the child she could take him along to the school, hence the father though was a well-wisher and wanted to take care of the child, but the degree of care as was being extended by the mother were higher to hold the sway to have the custody of the child, especially considering the nature of ailment with which the child was suffering from birth.

“…when the father is working at field moving from one place to other, how it is expected that the father would be able to give the company to extend the physical support to the child?”

Hence, Family court’s decision of giving the custody of child to the mother was the correct decision.

The court observed that the “contact rights” is also important for the development of the child especially in cases where both parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available between the parties should be video calling.

Order of the Court:

  • The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes on other days.
  • Both the appellant/ husband and the respondent/ mother in order to facilitate the video conferencing in between shall procure smart phones which would facilitate the inter-se video calling.
  • During long holidays/ vacation covering more than 2 weeks the child will be allowed to be in company of the father for a period of 7 days and the mother can also accompany them.
  • The period shall be fixed by the father after due intimation to the mother and she will permit the child to go with the father for the aforesaid period and the mother may also accompany them.
  • Every month preferably on 2nd Saturday and Sunday the mother shall allow the child to visit his father or father may take the child in his company and the mother may also accompany and leave him back in the evening of such day.
  • During festivals like Dusshera, Diwali, Holi, the father may join the company of the child at the place of the mother and spend the festival days with the child along with the mother.

In view of the above, appeal was disposed of.[Lalit Kumar Jatwar v. Sushma Jatwar, 2022 SCC OnLine Chh 332, decided on 3-2-2022]

Advocates before the Court:

For Appellant: Shri Manoj Paranjpe, Advocate

For Respondents: Shri A.D. Kuldeep, Advocate

Case BriefsHigh Courts

Delhi High Court: Yashwant Varma, J., delved into the subject of the role of a Family Judge while deciding petitions which come before him/her. The High Court in the instant petition directed the Family Court to consider the petition filed for maintenance under Section 24 of the Hindu Marriage Act.


Present petition was preferred challenging the decision of the Family Court.

First Order of the lower court had accorded visitation rights to the respondent, the second order provided for the system of the father being able to communicate with the child via a video call.

The Court was informed that on account of a medical affliction, the respondent was not in a position to take advantage of the rights of visitation physically and that the ends of justice would thus warrant the system of video calls being continued to enable the father to continue interaction with the child and thus participate in his upbringing.

In view of the above two orders, the Court had provided for fixation of an interim maintenance to be paid at a rate of Rs 15,000 and on one occasion payment of an additional sum of Rs 10,000 was also directed.

Question for Consideration

Validity of two orders passed by the Family Judge and whether the issue of interim maintenance or otherwise is liable to be decided by the High Court in writ petition even before parties have had the liberty and the occasion to lead appropriate evidence in order to enable the Family Judge to arrive at what would be a just maintenance which would be payable.

Analysis, Law and Decision

With regard to the latter question as stated above, Court opined that the principal jurisdiction with regard to the above stood conferred on the family judge.

It is the primary responsibility and function of the Family Judge to consider and decide as to what would constitute a fair maintenance, interim or otherwise, which should be fixed for the upkeep and upbringing of the minor child.

Whether Family Judge was justified in law in refusing to take up the application under Section 24 of the Act in the absence of a written statement filed.

Court noted that the family judge failed to assign any valid reason or allude to any circumstance which may have impeded its ability and authority to decide the said issue irrespective of whether a written statement had been filed or not.

A written statement, as a foundational precept, is a pleading dealing with the merits of the dispute. The insistence on the filing of a written statement and an application for maintenance being taken up for consideration only thereafter cannot possibly be recognized to be an inviolable rule.

Petitioner’s assertion was that she had no source of income and that she was facing financial constraints to look after the needs of the minor. It is not the case of the respondent that he was contributing to the expenses required for the wellbeing of the minor prior to the intervention of this Court.

Bench stated that the respondent failed to weigh into consideration that he too is a parent and thus obliged in law to contribute equally to meet the needs of the child.

Role of Family Judge

The Family Judge is supposed to perform a special and unique role under the Act. That Court, unlike others in the hierarchy of the judicial system does not merely preside over adversarial litigation. It also has to proactively engage with parties and act as a facilitator and mediator.

the provisions of Order VIII Rule 1 of the Civil Procedure Code are liable to be recognised as operating in absolute terms only where a particular statute may provide for consequences of a failure to adhere to the time frame prescribed for filing of a written statement.

As per the decision of Nidhi Banga v. Mohinder Bir Singh, 2014 SCC OnLine Del 7628, establishes that the Court essentially reiterated the underlying importance of Section 24 and of the obligation placed upon the Family Court to determine the payment of maintenance.

Family Court has failed to record even rudimentary reasons in support of its ultimate decision to defer decision on the application under Section 24 in the absence of a written statement being filed.

Court opined that the impugned orders would merit being set aside and the matter being remitted to the Family Judge who may take up the application for grant of interim maintenance as made under Section 24 and dispose of the same in accordance with law and upon due consideration of all objections that may be taken and evidences led by respective parties.

The ends of justice would also warrant the interim arrangement as made out by this Court and reflected in the above two orders of family court to be continued subject to following conditions:

  1. While the respondent would continue to pay interim maintenance of Rs 15,000/- as was fixed by this Court in its initial order of 2nd February, 2021, since presently, the respondent is unable to exercise the rights of visitation physically, the arrangement of an interactive session being put in place via a video call on a daily basis is liable to be continued.
  2. The Court further reserves the right of the respondent to reassert his right of physical visitation as and when his medical condition does so permit.

Hence, the above petition stands allowed and the matter shall stand remitted to the concerned principal Judge who shall take up the application as made by the petitioner under Section 24 for consideration. [Esha Dhir v. Sparsh Dhir, 2021 SCC OnLine Del 5163, decided on 29-11-2021]

Advocates before the Court:

For Petitioner:

Mr. Yakesh Anand, Ms. Sonam Anand, Ms. Deepshikha Sansanswal, Mr. Akshay Thakur, Advs.

For Respondent:

Mr. Pratap Singh Parmar, Adv.

Case BriefsHigh Courts

Allahabad High Court: J.J., Munir, J., addressed a matter wherein the father of the minor children has been facing trial for criminal charges and has instituted the petition seeking custody of his minor children.

The instant petition was instituted for a writ of habeas corpus on behalf of two minor children.

Minors’ Custody

It was stated that respondent 4 and respondent 5 be directed to produce the two minor-children detenues before the Court and minors be given into the father’s custody who has instituted the instant petition.

Digvijay Singh, counsel for the petitioners and Pankaj Kumar Tyagi, counsel appearing on behalf of respondent 4 and Sri Jhamman Ram, Additional Government Advocate appearing on behalf of the State.

Analysis and Decision

The issue of minor’s custody in the present matter came into light after the unnatural death of their mother, regarding which Awadesh Gautam (husband) and four others of his family were reported to the police by the respondent 4 charging them with murder and destruction of evidence.

It was alleged that the minors were taken forcibly by respondent 4 when the husband of the deceased was sent to jail.

Bench on perusal of the above stated observed that the question regarding maintainability of a habeas corpus writ petition to decide issues regarding custody of children or guardianship between a parent snd some other kindred, or between two parents, both of whom are natural guardians, all of this has been fairly well-settled. The stated issue came up for consideration before the Supreme Court in Syed Saleemuddin v. Dr Rukhsana, (2001) 5 SCC 247 wherein it was held that:

“…in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court.”

In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 it was held that:

“19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.”

In the present matter, Court stated that the custody cannot be termed as unlawful. Respondent 4 is the minors’ grandmother who has been given custody of the minors’ by Neeraj Gautam, the cousin or relative of Awadhesh’s in the presence of the Station House Officer.

Awadhesh who is the father of the minors’ could say that being the natural guardian of the two minors’ he has the right to seek their custody from the grandmother.

It is precisely this right which Awadhesh asserts, by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. He says he is the sole natural surviving guardian, and therefore, entitled to the minors’ custody. It is, no doubt, true that Awadhesh is the minors’ natural guardian under Section 6 (a) of Act, 1956, but the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare.

The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best.

The principle governing custody of minor children, apart from other issues, fell for consideration of the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

In the above-cited case, the facts disclose that the father, who claimed the minors’ custody from his maternal grandfather and grandmother was like her, an accused in a case relating to his wife’s dowry death. Fathers’ involvement in a case relating to wifes’ dowry death was regarded by the Supreme Court as an important factor to be carefully addressed.

“…fact about the involvement of a natural guardian, in a criminal case relating to the death of a spouse, was held to be an important consideration while determining the question of welfare of the minor.”

Court interacted with the eldest amongst the minors’ who expressed that he is not disturbed at all about the fact that his maternal grandmother has placed him and his sister at Sri Braddhanand Bal Ashram. 

Further, the child added that he does not wish to go back to his father or stay with him. On being asked the reason, he says that he fears for his life. He also said that he wishes to stay at the hostel. During the course of the conversation, the child emotionally brokedown and wept. He insisted upon staying with the hostel and refused to go back to his father.

Later the Court looked into the allegations for which the father was facing trial, wherein it was noted that the wife had called up her mother stating that there was a conspiracy afoot, where she could be crushed to death under the wheels of a tractor. Later on, she was found dead near portraying it as an accident.

The totality of the circumstances on record shows that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody.

Bench held that the father is not entitled to the minors’ custody when he is facing criminal charges. Once he is acquitted, it would be open to him to make an appropriate application seeking their custody to the Court of competent jurisdiction under the Guardians and Wards Act, 1890.

In the totality of the circumstances obtaining for the present, this Court did not find it appropriate to grant any visitation rights to Awadhesh Gautam.[Shaurya Gautam v. State of U.P., 2020 SCC OnLine All 1372, decided on 10-11-2020]

Case BriefsHigh Courts

Delhi High Court: Jyoti Singh, J., while addressing a matter with regard to “custody order” as being the primary relief, held that,

Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.

Petitioner sought directions with regard to setting aside the Order passed by Metropolitan Magistrate under the Protection of Women from Domestic Violence Act, 2005.

Due to a rift in petitioner and respondent’s relationship it resulted into respondent taking away their 3 daughters under a separate roof.

Reliefs that petitioner was seeking for in the initial complaint under the said Act was “Protection Order” under Section 18 of the Act, “Custody Orders” under Section 21 of the Act. Along with the said complaint, an application under Section 23 for various other reliefs was also filed by the petitioner.

Metropolitan Magistrate had directed that the custody of the children would continue to remain with the father/respondent and as an interim measure visitation rights were granted to the petitioner.


Relying on several decisions of the High Court and Supreme Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303 it was found that,

“…Supreme Court has time and again spelt out clear restraints on use of extraordinary powers and observed that High Courts should not go beyond those wholesome inhibitions, unless the extraordinary circumstances cry for immediate and timely judicial interdiction or mandate.”

“Mentor of law is justice and a potent drug should be judicially administered.”

High Court held that it is not persuaded in the facts and circumstances of the present case, to entertain the petition in its extraordinary power under Section 482 CrPC, given the fact that there is a clear remedy of Appeal under Section 29 of the Act.

Argument — Matter related to custody of minor girls, remedy of appeal is not efficacious

Court put forth the reasons for not accepting the said argument and stated that,

  • Legislature in its wisdom has provided for Appeal under Section 29 of the Act against all “orders” and has not made any exception to orders relating to custody.
  • It is not shown why the Petitioner cannot resort to the remedy of an Appeal and why the Appellate Court is incapable of or incompetent to exercise its jurisdiction to deal with an impugned order of temporary custody, both in law and facts.

In view of the above reasons, petition was dismissed. [Sirisha Dinavahi Bansal v. Rajiv Bansal, 2020 SCC OnLine Del 764 , decided on 20-07-2020]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]


The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor. The term “custody” is not defined in any Indian family law, whether secular or religious.[1]

Statutory Law

(i) Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion.[2]

(ii) Hindu Law: It is to be noted that the following two Acts discussed under “Hindu Law” are applicable to any person who is a Hindu, Buddhist, Jaina or Sikh by religion[3].

      (a) Hindu Minority and Guardianship Act, 1956: Classical Hindu law did not contain principles dealing with guardianship and custody of children.[4] However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act provides various provisions concerning the matters of guardianship and custody of minor Hindu children.[5]

    (b) Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act authorises courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorises courts to revoke, suspend or vary such interim orders passed previously.[6]

(iii) Islamic Law: In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty.[7] The concept of Hizanat provides that, of all persons, the mother is the most suited to have the custody of her children up to a certain age, both during the marriage and after its dissolution. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.[8]

(iv) Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorised to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts.[9]

(v) Marriages registered under Special Marriage Act, 1954: This Act provides for a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. Couples who register their marriage under Special Marriage Act can take resort to Section 38  of the Act for the purposes of custody of children. Section 38 empowers the district court to pass interim orders during pendency of proceedings and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible.

The paramount consideration

While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.

It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.

Principles in relation to custody of child

An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor, Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 .

Object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. In considering the question of welfare of minor, due regard has, of course, to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 .

Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy-duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration, Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.

The word “welfare” used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor, Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698.

Even an interim order of custody in favour of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent, Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.

The principles laid down in proceedings under the Guardians and Wards Act, 1890 are equally applicable in dealing with the custody of a child under Section 26  of the Hindu Marriage Act, 1955, since in both the situations two things are common: the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a straitjacket. Therefore, each case has to be dealt with on the basis of its peculiar facts, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.

It is not the “negative test” that the father is not “unfit” or disqualified to have custody of his son/daughter that is relevant, but the “positive test” that such custody would be in the welfare of the minor which is material and it is on that basis that the court should exercise the power to grant or refuse custody of a minor in favour of the father, the mother or any other guardian, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413. 

Twin objectives of the “welfare principle”

The welfare principle is aimed at serving twin objectives. In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family/custody disputes according to the optimal growth and development of the child and has primacy over other considerations. This right of the child is also based on individual dignity. The second justification behind the welfare principle is the public interest that stands served with the optimal growth of the children. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation, Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

Considerations governing grant of custody*

A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. The court has to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

The welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc., Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

The crucial factors which have to be kept in mind by the courts for gauging the welfare of the children and equally for the parents can be, inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

Issues common to all child custody disputes are: (a) continuity and quality of attachments, (b) preference, (c) parental alienation, (d) special needs of children, (e) education, (f) gender issues, (g) sibling relationships, (h) parents’ physical and mental health, (i) parents’ work schedules, (j) parents’ finances, (k) styles of parenting and discipline, (l) conflict resolution, (n) social support systems, (o) cultural and ethnic issues, (p) ethics and values and religion.[10] Though the prevailing legal test is that of the ‘best interests of the child’, the Courts have also postulated the “least detrimental alternative” as an alternative judicial presumption, J. Selvan v. N. Punidha, 2007 SCC OnLine Mad 636.

 Nature of custody orders

In a matter relating to the custody of a child, the Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings, custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.

Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Estoppel not applicable to custody orders

Orders relating to custody of wards even when based on consent are liable to be varied by the court, if the welfare of the wards demands variation. Estoppel is not applicable to such orders, Rosy Jacob v. Jacob A. Chakramakkal(1973) 1 SCC 840.

Where to file an application for custody of a child

Section 9  of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. The solitary test for determining the jurisdiction of the court under Section 9 is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”**. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an inquiry into the factual aspects of the controversy, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 .

Interim custody / Temporary custody

Section 12 of the Guardians and Wards Act, 1890, empowers the Court to make orders for temporary custody and protection of the person or property of the minor.

While deciding the question of interim custody, the court must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems proper. The factors that must be kept in mind while determining the question of guardianship will apply with equal force to the question of interim custody. The strict parameters governing an interim injunction do not have full play in matters of custody, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

Examination of the child is important

Examination by the court of the child in order to ascertain his wish as to with whom he wants to stay is important and desirable. Apart from the statutory provision in the form of sub-section (3) of Section 17 of the Guardians and Wards Act, 1890, such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 .

Constructive custody

The word “custody” as used in Section 25 of the Guardians and Wards Act, 1890, ought to be held to include both actual and constructive custody. It was admitted that this interpretation could only be arrived at by some straining of the language but it was considered that it was justified because it would serve to carry out the intention of the Legislature in framing the Act, Mushaf Husain v. Mohd. Jawad, 1918 SCC OnLine Oudh JC 22.

Hindu Minority and Guardianship Act is in addition to the Guardian and Wards Act

Where no specific remedy is provided under the Hindu Minority and Guardianship Act, 1956, Section 2 and Section 5(b) of the Act makes the provisions of the Guardians and Wards Act applicable to such a case. Section 2 makes it clear that the Hindu Minority and Guardianship Act, 1956 is in addition to the Guardians and Wards Act, 1890, N. Palanisami v. A. Palaniswamy, 1998 SCC OnLine Mad 305.

 Natural Guardian

Section 6  of the Hindu Minority and Guardianship Act, 1956, provides who is the natural guardian of a minor’s person in different cases. It enlists the natural guardian to be as:

(a) In the case of a boy or an unmarried girl — the father, and after him, the mother:

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

(b) In the case of an illegitimate boy or an illegitimate unmarried girl — the mother, and after her, the father.

(c) In the case of a married girl — the husband:

However, it is to be remembered that in this section, the expressions “father” and “mother” do not include a stepfather and a stepmother.

Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act, 2006. Therefore, an adult male who marries a female child in violation of Section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child, T. Sivakumar v. State of T.N., 2011 SCC OnLine Mad 1722.

Section 7 of the Hindu Minority and Guardianship Act, 1956, provides that natural guardianship of the adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.

Custody of a Hindu child aged below 5 years

The Hindu Minority and Guardianship Act postulates that the custody of an infant or a tender-aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. However, it is immediately clarified that Section 6(a) or for that matter any other provision including those contained in the Guardians and Wards Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 .

Custody of children born outside wedlock (illegitimate child)

The preponderant position is that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

The subtle difference between “custody” and “guardianship”

The appointment of a guardian and the custody of minors are two different aspects. There is a subtle distinction between the expression “Custody” and “Guardianship”. The concept of custody is related to physical control over a person or property. The concept of guardianship is akin to trusteeship. A guardian is a trustee in relation to the person of whom he is so appointed. The position of a guardian is more onerous than of a mere custodian. The custody maybe for short duration and for a specific purpose, Ramesh Tukaram Gadhwe v. Sumanbai Wamanrao Gondkar, 2007 SCC OnLine Bom 975.

The question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case. As far as matters of custody are concerned, the court is not bound by the bar envisaged under Section 19 of the Guardians and Wards Act, 1890, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

 Writ of habeas corpus for restoration of custody

In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

Effect of remarriage on custody

Second marriage of either of the parent is a factor to be considered while granting custodial rights, but second marriage does not disentitle him/her to the custody of his/her children, Athar Hussain v. Syed Siraj Ahmed(2010) 2 SCC 654.

Visitation rights

A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit. Visitation rights succinctly stated are distinct from custody or interim custody orders. Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent, Roxann Sharma v. Arun Sharma(2015) 8 SCC 318.

Parental Alienation Syndrome

As a result of the separation of parents, often the child falls in the middle of a contest of loyalty, which psychologists term as Parental Alienation Syndrome[11]. It has at least two psychological destructive effects:

(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest that cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.

(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent’s distortions of reality.

A negative approach adopted by any parent is a significant factor weighing against him/her while considering grant of custody of the child by the court, Vivek Singh v. Romani Singh(2017) 3 SCC 231.

 Child abduction and Repatriation of child

Inter-country dispute

If considerable time has elapsed between the removal of a child from the native country by any parent and steps are taken for repatriation by writ petitioner parent, the court would prefer an elaborate inquiry into all relevant aspects bearing on the child. Immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. Unless 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 has got adjusted for its well-being. Irrespective of summary or elaborate inquiry to be undertaken by a High Court, the welfare of the child must prevail as foremost overriding consideration, while pre-existing foreign court’s order must be taken as one of the factors for deciding the question of custody. Applicability of doctrines/principles of “comity of courts”, “intimate contact” and “closest concern” would depend upon various attendant facts and circumstances, keeping in mind primacy of welfare of the child, Prateek Gupta v. Shilpi Gupta(2018) 2 SCC 309.

The consistent view of the Supreme Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order the return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

Parens patriae jurisdiction of Indian courts

The duty of a court exercising its parens patriae jurisdiction as in cases involving custody of minor children is all the more onerous. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. But it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

 Forum convenience and comity of courts

It is a settled legal position that the concept of forum convenience has no place in wardship jurisdiction. The principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State. The predominant criterion of the best interests and welfare of the minor outweighs or offsets the principle of comity of courts, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

Case of non-Convention countries

India is not yet a signatory to the Hague Convention of 1980. The courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign court if any as only one of the factors and not get fixated therewith, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

While examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

 Questions to be considered by the Court

In a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the person having custody to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

Order of foreign court must yield to welfare of child

The order of the foreign court must yield to the welfare of the child. Further, the remedy of a writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

 Order of foreign court not a decisive factor

The fact that the other parent had already approached the foreign court or was successful in getting an order from the foreign court for the production of the child, cannot be a decisive factor. Similarly, the parent having custody of the minor has not resorted to any substantive proceeding for custody of the child, cannot whittle down the overarching principle of the best interests and welfare of the child to be considered by the Court, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

Jurisdiction of family court

Jurisdiction of Family Court qua petition for custody of minor children is non-existent when children are foreign citizens not ordinarily residing within the jurisdiction of the Family Court, Lahari Sakhamuri v. Sobhan Kodali(2019) 7 SCC 311.

Duty of the court

It is the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. The case where child’s presence in India is the result of an illegal act of abduction, the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune, Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 .

Supreme Court’s expression of deep concern

Divorce and custody battles can become a quagmire and it is heart-wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily, the child is not a true participant in the process. While the best-interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself nor does he have representation in the ordinary sense. The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

Further Suggested Reading

  1. B.M. Gandhi — Family Law [Buy Here]
  2. Monica Sakhrani — Laws of Marriage and Divorce [Buy Here]
  3. Sumeet Malik — Family Law Manual [Buy Here]
  4. Surendra Malik & Sudeep Malik — Supreme Court on Family and Personal Laws [Buy Here]

Read also from SCC Online Blog

SC | Principle of confidentiality in mediation does not apply to matters of child custody

Bom HC | Welfare of child should be of paramount consideration in case of interim custody; Child willing to shift with father moved on his own will

Del HC | Custody of minor girl child granted to mother as per Section 6 HMG Act; considerations while deciding matters reiterated

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

[1] Reforms in Guardianship & Custody Laws in India, Report No. 257 of the Law Commission of India, May 2015.

[2] ibid.

[3] See S. 3 of the Hindu Minority and Guardianship Act, 1956; and S. 2 of the Hindu Marriage Act, 1955.

[4] Reforms in Guardianship & Custody Laws in India, Report No. 257 of the Law Commission of India, May 2015.

[5] ibid.

[6] ibid.

[7] ibid.

[8] See B.M. Gandhi, Family Law, 2nd Edition, Volume 1, 2019, Eastern Book Company, Lucknow.

[9] Reforms in Guardianship & Custody Laws in India, Report No. 257 of the Law Commission of India, May 2015.

* For elaborate discussion, see case notes appended to EBC’s Guardians and Wards Act, 1890 (Bare Act), 2019 Edition.

[10] See Summary of Practice Parameters for Child Custody Evaluation published by American Academy of Child and Adolescent Psychiatry.

** For elaborate discussion on what is “ordinary residence”, see case notes appended to EBC’s Guardians and Wards Act, 1890 (Bare Act), 2019 Edition.

[11] The Parental Alienation Syndrome was originally described by Dr Richard Gardner in “Recent Developments in Child Custody Litigation”, The Academy Forum, Vol. 29, No. 2: The American Academy of Psychoanalysis, 1985.

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Anthony Dominic, CJ and Dama Seshadri Naidu, J. decided a public interest litigation, wherein it declined to issue guidelines for objective assessment in a scientific manner for the court or other authorities concerned to decide issues relating to custody of children.

The petitioners were estranged husbands involved in cases relating to custody of children, pending before the Family Court with their wives as opposite parties. Grievance of the petitioners was that they often faced adverse orders in matters of visitation rights, interim custody of wards, guardianship and other such issues, before the Family Court. They submitted that the orders passed by the Family Court lacked objective assessment based on scientific criteria and were often passed purely on the subjective satisfaction of the Judges; the ‘interest of the child’ quite often became a casualty. Learned counsel for the petitioners impressed upon the need of laying down scientific guidelines by the High Court for an objective assessment of the welfare of the child which should be prime consideration in disputes of such nature.

The High Court, after duly considering the submissions made on behalf of the parties, held the law to be well settled that in a case where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. Further, in disputes of such a nature, the Court has to appreciate the issue as a whole, and not by going entirely on the legal rights of the parties. The exercise of such a discretionary power by a Court could not be curtailed by issuing any guidelines, as was sought by the petitioners. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so.

In such circumstances, the Court held that no such relief as prayed for by the petitioners could be granted and therefore, the petition was dismissed. [Sachin Narayanan Pillai v. State of Kerala,2018 SCC OnLine Ker 1460, decided on 21.3.2018]

Case BriefsSupreme Court

Supreme Court: Showing deep anguish over the increasing number of custodial or unnatural deaths in the prisons across India, the bench of Madan B. Lokur and Deepak Gupta, JJ issued a list of directions and said:

“The right sounding noises critical of custodial violence (in any form) cannot achieve any useful purpose unless persons in authority hear the voices of the victims or the silence of the dead and act on them by taking remedial steps.”

The directions issued by the Court are as follows:

Compensation: Chief Justices of all the High Courts should register a suo motu public interest petition with a view to identifying the next of kin of the prisoners who have admittedly died an unnatural death as revealed by the NCRB during the period between 2012 and 2015 and even thereafter, and award suitable compensation, unless adequate compensation has already been awarded.

Directions for educating & training Prison officials:

  • The Ministry of Home Affairs should circulate, by 31st October, 2017, the(i) the Model Prison Manual, (ii) the monograph prepared by the NHRC entitled “Suicide in Prison – prevention strategy and implication from human rights and legal points of view”, (iii) the communications sent by the NHRC, (iv) the compendium of advisories issued by the Ministry of Home Affairs to the State Governments, (v) the Nelson Mandela Rules and (vi) the Guidelines on Investigating Deaths in Custody issued by the International Committee of the Red Cross to the Director General or Inspector General of Police (as the case may be) in charge of prisons in every State and Union Territory.
  • NCRB should explain and clarify the distinction between unnatural and natural deaths in prisons as indicated on the website of the NCRB and in its Annual Reports and also explain the sub-categorization ‘others’ within the category of unnatural deaths as well as subcategorize natural deaths by 31st October, 2017.
  • The State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties and responsibilities as also the rights and duties of prisoners.

Counselors in Prison:

  • The State Governments are directed to appoint counselors and support persons for counselling prisoners, particularly first-time offenders in order to counsel and advice prisoners who might be facing some crisis situation or might have some violent or suicidal tendencies.

Visitation rights & Open Jails:

  • Visits to prison by the family of a prisoner should be encouraged, However, the time or frequency of meetings can be extended and the possibility of using phones and video conferencing for communications not only between a prisoner and family members of that prisoner, but also between a prisoner and the lawyer, whether appointed through the State Legal Services Authority or otherwise can be explored.
  • The constitution of a Board of Visitors by 30th November, 2017, which includes non-official visitors is of considerable importance so that eminent members of society can participate in initiating reforms in prisons and in the rehabilitation of prisoners.
  • The establishment of ‘open jails’ or ‘open prisons’ should be considered.

Medical Assistance:

  • The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary.

Custodial Death of Children

  • The Ministry of Women & Child Development should discuss with the concerned officers of the State Governments and formulate procedures, by 31st December, 2017, for tabulating the number of children (if any) who suffer an unnatural death in child care institutions where they are kept in custody either because they are in conflict with law or because they need care and protection.

The Court also directed the Chief Justice of every High Court, in the capacity of Patron-in-Chief of the State Legal Services Authority, to take up the initiative of conducting a study in respect of the overall conditions in prisons in the State and the facilities available and, if necessary, set up a Committee headed preferably by the Executive Chairperson of the State Legal Services Authority to implement the directions given above. [Re- Inhuman Conditions in 1382 Prisons, 2017 SCC OnLine SC 1109, decided on 15.09.2017]

Case BriefsHigh Courts

Delhi High Court: Hearing an appeal against the Family Court’s order granting only an  hour every month as visitation rights to the appellant father, the Court observed that mere hesitation on the child’s part to meet either of the parent should not be a ground to deny proper access to the spouse in question. It is trite that it is always in the interest of a child to bond with both parents notwithstanding the parents being estranged.

Terming the visitation right as illusory, the appellant was aggrieved by the impugned order wherein the learned Judge had noted that during his interaction with the child he found the child completely hesitant to be with his father.

The Division Bench comprising of Pradeep Nadrajog and Pratibha Rani, JJ. observed that the learned Judge ought not to have rushed through the matter in a casual manner. One interaction with the child was not enough. If a child is hesitant to be with a parent, it is duty of the Presiding Judge of the Family Court to have the child counselled with the help of the counsellors attached to the Court. Every effort has to be made to counsel both parents to spare the child the agony of their separation. The parents have to be counselled to keep the child out of the litigation and in turn encourage the child to meet the other spouse. This process of breaking the ice thought slow and cumbersome, has to be followed. Meaning thereby, if a Judge of a Family Court finds a child hesitant to meet either parent, it should not be the ground to deny proper access to the spouse in question.

The Court directed the Family Court to refer the parents to the counsellors attached to the Court to try to reach a compromise. Till a resolution takes place, as an interim measure the Court directed the appellant be granted access to the child on fortnightly basis. The meeting would be initially either in the counsellors’ room attached to the Family Court Complex or in the children room. If the counsellors find the child comfortable with the father  and the situation improves, the ultimate endeavour would be for the child to spend six to eight hours every week with his father. Disposing of the appeal, the appellant’s application under Section 12 of the Guardians and Wards Act was directed to be taken up afresh by the Family Court.  [Aditya Mahajan v. Shachi Mahajan,  2016 SCC OnLine Del 5056 , decided on September 1, 2016]