Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and JB Pardiwala*, JJ, in a matter relating to custody of two minor children, has advised the parents to respect each other and resolve the conflict respectfully, to give the children ‘a good foundation for the conflict that may, God forbid, arise in their own lives.’

Stating that the two minor children, aged 13 and 9, in the case at hand are watching their parents very closely, the Court observed,

“The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness.”

The Court also explained the Doctrine of Parental Alienation Syndrome, i.e. the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects: (1) It puts the child in the middle of a loyalty contest, which cannot possibly won by any parent; (2) It makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits. The Court, hence, observed that the intent of the court should be to circumvent such ill effects.

Key Facts

The Court was deciding the case where, after the relationship between the parents went sour, the father took both the minor children away from the mother. Here are some key facts necessary to understand the case:

  1. Daughter was born in India but travelled to the USA when her father got a Job there. Son was born in the USA and is hence, a natural citizen of the USA.
  2. When the father lost his job, the children stayed with the mother who worked on getting a degree. She eventually became a resident of the USA holding H1B visa and sponsorship. She has a good job and earns a handsome salary and has the resources to provide for a comfortable life to her children in the USA.
  3. Despite several interventions by Courts and Authorities, the father did not allow the mother to meet the children unsupervised. He even alleged that the mother was mentally ill and was hence, not fit to take care of the children.
  4. A shared parenting plan[1] was arrived at between the parties vide order dated 12th May 2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio, giving both the parties joint custody of their children. The visitation schedule was clearly laid down. The parties agreed to not relocate without the consent of the other party and without the Court’s permission by way of a 60 day prior notice and the passports of the children were to stay in alternation with the non-custodian parent while the children were in the custody of the other parent.
  5. A separation agreement was also entered upon between the parties dated 27th July 2021.
  6. On 28th July 2021, the father intimated the US Court that he would like to take his minor children on a vacation to India. Since the travel itinerary shared by him was such that the children would miss their school by a week, the mother declined to accept it and requested the father to go to India for his vacation, and during that period, the kids would stay with their mother.
  7. On 16th August 2021, the father allegedly, took the children away from her house in her absence. The mother claimed that on the same night, she received a distress call from her minor daughter who informed her that her father was taking both of them to India on the 17th August 2021. However, as per the travel itinerary, the travel was to happen on 19th August 2021.
  8. The daughter again gave a distressed call to her mother from India pleading her to take her back to the USA.
  9. The shared parenting plan ultimately came to be terminated by the Court at Ohio vide order dated 9th February 2022 at the instance of the mother.

Children will have a better future in the USA

  1. Both the minor children are residents of the USA.
  2. The son is a natural citizen and the daughter is a permanent resident of the USA.
  3. Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country.
  4. The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
  5. The minor daughter has a remarkable high IQ. She has been identified to be a gifted child. In such circumstances, both the minor children were admitted in a special school meant for children with such remarkably high IQ in the USA. Such schools in the USA are specialized in providing education to the gifted children which, ultimately, helps in the overall development of such children. The special education ultimately enhances the potential of such children. Both the children in the present case have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with.
  6. It is the fundamental right of the mother to have the company of her children and not to be deprived of the same without a reasonable cause.
  7. The allegations levelled by the father that the mother suffers from some mental illness appears to be absolutely wild and reckless.

Directions

  1. Father to travel to the USA immediately along with the children, preferably within two weeks.
  2. Once the two minor children reach the USA, it will be open for the mother to take care of her children.
  3. The father can stay back in the USA if he wants and if the laws of the country permit him to do so. But if he decides to come back to India, then the mother shall make both the minor children speak to their father on-line at least once every week.
  4. The Court also left it open for the parties to go back to the Court at Ohio and revive the shared parenting plan as was arrived at vide order dated 12th May 2021.

[Rajeswari Chandrasekhar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, decided on 14.07.2022]


*Judgment by: JB Pardiwala

Counsels

For mother: Advocate Prabhjit Jauhar

For father: Senior Advocate Meenakshi Arora


[1] Shared parenting means the parents share the rights and responsibilities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children. The mother and the father together, under a shared parenting agreement, are granted custody, care and control of the minor children until further order that may be passed by the Court subject to certain terms and conditions.

Case BriefsSupreme Court

Supreme Court: In a case relating to the custody of a 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grand parents, the bench of MR Shah* and Anirudhha Bose, JJ has held that income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.

While handing over the custody of the minor to the maternal aunt, the following factors had weighed in with the High Court:

  • The paternal grandparents are old age – 71 and 63 years respectively against which the maternal aunt is aged 46 years
  • The maternal aunt is having a bigger family;
  • The grandfather is a retired government servant – depending upon the pension against which the maternal aunt is a government employee and therefore she will be in a better position to take care of the minor.

However, what the High Court failed to consider was that the child had shown his inclination to stay with the paternal grandparents. Also, the custody remained with the grandfather pursuant to the interim order passed by the High Court. Nothing was observed by the High Court that during the interim custody period, the paternal grandparents did not take proper care of the minor.

The Supreme Court, hence, observed that the reasons/grounds for granting custody to the maternal aunt may be relevant but not germane.

“There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren.”

The Court also considered the fact that the grandparents have also managed to get admission of the minor in a school in Ahmedabad.

Hence, the following factors weighed in with the Supreme Court while granting the custody to the grandparents:

  • The minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod.
  • Being a retired person, the paternal grandparents would devote more time and take care of minor better than the maternal aunt who is serving in the government department.
  • Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
  • The High Court has not observed anything against the paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor.

Stating that it was a very difficult choice as it cannot be said that the maternal aunt may not take proper care of the minor son of her deceased sister, the Court said that on the facts and circumstances of the case, the High Court committed an error in not handing over and/or continuing the custody of the minor to the paternal grandparents. The Court observed that,

“if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents.”

The Court, however, directed that

  • the maternal aunt shall have visitation right to meet the minor on regular basis preferably once in a month, subject to the convenience of the child.
  • during the vacation and/or holidays the grandparents may permit the minor to visit and stay with the maternal aunt, of course subject to wishes and convenience of the minor and it may not adversely affect the interest of the minor including his education and even the extra curriculum activities.
  • It is also expected to have video calling between the corpus and maternal aunt on regular basis.

[Swaminathan Kunchu Acharya v. State of Gujarat, 2022 SCC OnLine SC 733, decided on 09.06.2022]


*Judgment by: Justice MR Shah


Counsels

For grandparents: Advocate D.N. Ray

For Maternal Aunt: Advocate Rauf Rahim

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

Bombay High Court: Stating that the welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another, Bench of N.J. Jamadar and S.S. Shinde, JJ., expressed that,

Courts often ensure that even if custody is given to one parent, the non-custodial parent has adequate visitation rights.

Instant petition was filed for a writ of habeas corpus to produce the son of the petitioner, who had been allegedly illegally kept away from the petitioner by respondent 2 – wife of petitioner and immediate transfer of custody of son to petitioner.

Background

As per petitioner, respondent 2 was extremely busy with her professional commitments and has not been able to devote any time for parenting and development of minor son. In contrast, petitioner had decided not to accept any professional commitment and devote his entire time, effort and attention to bring up the son.

Due to marital discord, respondent 2 allegedly prevented the petitioner from meeting the son, jeopardizing the willingness and happiness of son and even the petitioner made efforts to meet the son, respondent lodged false and motivated reports against him.

Even when the son got infected with COVID-19, respondent 2 sent him to petitioner’s house who nursed him and took care of him. The son even refused to leave the house and accompany respondent 2.

Respondent 2 along with the son absconded and on several efforts of the petitioner, he couldn’t locate respondent 2.

In view of the above background, petitioner approached the Court.

Analysis, Law and Decision

High Court while analyzing the matter stated that it is not an immutable rule of law that writ of habeas corpus, at the instance of one parent, is not maintainable if the child is in the custody of another parent, unless the custody is strictly illegal or unlawful.

Further, the Court also added that the writ of habeas corpus can also be pressed into service for granting the custody of a child to a spouse if the welfare of the child so dictates.

Who should be given custody?

To determine the question as to who should be given custody of a minor child, the primary consideration is the welfare of the minor and not the legal rights of the parents, statutory or customary.

Parents at loggerheads

Parameters for determination of the proper custody for a minor, when the parents are at loggerheads are well recognized.

Legal rights of the parents yield to the paramountcy of the welfare of the child.

Bench referred to the decision of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, wherein the Supreme Court articulated factors, which weigh-in, in determining the question of custody of a minor child.

Supreme Court’s decision of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, was also referred to, wherein the consideration for determination of the proper custody of a minor child were succinctly postulated.

In view of the above decision, Bench noted that welfare of the minor is a broad and elastic term.

 Every factor which bears upon the development of the child, must enter into the decision of the Court. Court is called upon to deal with a human problem with a humane touch.

Tender Years Rule

Bench stated that the said rule has been recognized under Section 6 of the Hindu Minority and Guardianship Act, 1956 which provides that in the case of a boy or an unmarried girl, father, and after him, the mother shall be the natural guardian; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.

Coming to the present facts and circumstances, Court expressed that it is imperative to note that having regard to the age of the son, tender year rules, which has statutory recognition, get attracted and thus cannot be brushed aside lightly in evaluating the “welfare principle”.

In Court’s opinion, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and availability of ample time with another.

In view of the facts and circumstances of the case, High Court found no exceptional circumstances which warranted a departure from “tender years rule”, nor there was such material which prima face indicated that the custody with mother was detrimental to the welfare and development of the son.

Lastly, while concluding, the Court stated that the minor son needs love, affection, care and protection of both, petitioner and respondent 2.

Love and affection of both parents is considered to be the basic human right of a child. Thus, the element of the access of the child to a non-custodial parent assumes critical salience.

Courts often ensure that even if custody is given to one parent, non-custodial parent has adequate visitation rights.

High Court stated that for the development of the sone, it would be necessary to allow the physical access of father to son at least twice a week.

Directing for daily access through video conference for half an hour and physical access twice a week of minor son to petitioner, the present petition was disposed of. [Abhinav Kohli v. State of Maharashtra, Criminal WP No. 225 of 2021, decided on 30-9-2021]


Advocates before the Court:

Swapna P. Kode i/b Tripti R. Shetty for petitioner/applicant.

J.P. Yagnik, APP for respondent 1 – State.

Hrishikesh Mundargi i/b Subir Sarkar for respondent 2.


Read more:

Minor:

1. Means a person who has not completed his or her age of eighteen years, [Section 3(c), Hindu Adoptions and Maintenance Act, 1956 (India)].

2. Means a person who has not completed the age of eighteen years, [Section 2(1)(t), Mental Healthcare Act, 2017 (India)].

Custody:

Implies guardianship. It must be a lawful custody under provisions of a statute or under order of court, Omkar Prasad Verma v. State of M.P.(2007) 4 SCC 323: (2007) 2 SCC (Cri) 293.

Case BriefsSupreme Court

Supreme Court: Considering the need for continuous monitoring of the implementation of the schemes in favour of the affected children, the bench of L. Nageswara Rao and Aniruddha Bose, JJ has issued a series of directions after it was submitted before it by amicus curiae Gaurav Agarwal that identification of children who have become orphans or have lost one of their parents during this pandemic does not brook any delay. Immediate relief should follow the identification of such children without any delay.

Data

The information provided by the State Governments/Union Territories on the ‘Bal Swaraj’ Portal upto 05.06.2021 shows that there are 30,071 children who have become orphans or have lost one parent or abandoned. There are 3,621 orphans, 26,176 children who have lost one parent and 274 children who have been abandoned.

Key suggestions

  • the DCPO should meet the child and the guardian immediately after receipt of information and ascertain the willingness of the guardian to take care of the child apart from making an assessment of the immediate needs of the child and the financial condition of the guardian.
  • DCPO should ensure that adequate provision is made for ration, food, medicines and clothing etc. for the child.
  • An amount of Rs.2,000/- per month should be released in favour of the child till CWC passes an order after due inquiry.
  • follow-up with the child at least once a month to ascertain his/her well being.
  • The financial benefit that was announced by Integrated Child Protection Scheme (ICPS) to the tune of Rs.2000/- per month per child has to be provided immediately by the DCPOs.
  • There should be continuous monitoring regarding the welfare of the child by the District Child Protection Units (DCPUs) even after the financial order is passed by the CWC. This should be done periodically every three to six months.
  • the affected children should not face a situation of discontinuance of their education. If the affected children are studying in Government schools they should be permitted to continue. In so far as the children who are studying in private schools, the State Governments/Union Territories should take steps and direct the continuance of the children in those schools at least for period of six months by which time some arrangement can be worked out.
  • the protection of property rights of the children, further education of the children including employment opportunities, special care to be taken in respect of the girl child ( to be taken up on the next date of hearing.)

Illegal adoption of affected children

The State Governments/Union Territories are directed to prevent any NGO from collecting funds in the names of the affected children by disclosing their identity and inviting interested persons to adopt them. No adoption of affected children should be permitted contrary to the provisions of the JJ Act, 2015. Invitation to persons for adoption of orphans is contrary to law as no adoption of a child can be permitted without the involvement of CARA.

“Stringent action shall be taken by the State Governments/Union Territories against agencies/individuals who are responsible for indulging in this illegal activity.”

Direction issued

(1) The State Governments/Union Territories are directed to continue identifying the children who have become orphans or lost a parent after March, 2020 either due to Covid-19 or otherwise and provide the data on the website of the NCPCR without any delay. The identification of the affected children can be done through Childline (1098), health officials, Panchayati Raj Institutions, police authorities, NGOs etc.

(2) The DCPU is directed to contact the affected child and his guardian immediately on receipt of information about the death of the parent/parents. Assessment shall be made about the suitability and willingness of the guardian to take care of the child. The DCPU should ensure that adequate provisions are made for ration, food, medicine, clothing etc. for the affected child. Financial assistance to which the disconsolate child is entitled to under the prevailing schemes by the Central Government and the State Governments/Union Territories should be provided without any delay.

(3) The DCPO should furnish his phone number and the name and phone number of the local official who can be contacted by the guardian and the child. There should be a regular follow up by the concerned authorities with the child at least once in a month.

(4) If the DCPO is of the prima facie opinion that the guardian is not suitable to take care of the child, he should produce the child before the CWC immediately.

(5) CWC should provide for the essential needs of the child during the pendency of the inquiry without fail. The inquiry should be completed expeditiously. CWC shall ensure that all financial benefits to which the child is entitled are provided without any delay.

(6) The State Governments/Union Territories are directed to make provisions for continuance of education of the children both in Government as well as in private schools.

(7) The State Governments/Union Territories are directed to take action against those NGOs/individuals who are indulging in illegal adoptions.

(8) Wide publicity should be given to the provisions of the JJ Act, 2015 and the prevailing schemes of the Union of India and the State Governments/Union Territories which would benefit the affected children.

(9) DPCO shall take the assistance of government servants at the Gram Panchayat level to monitor  the welfare of the disconsolate children who are devastated by the catastrophe of losing their parent/parents.

[IN RE CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2021 SCC OnLine SC 422, order dated 07.06.2021]


FOR NCPCR Mr. K. M. Nataraj, Ld. ASG, Ms. Swarupama Chaturvedi, AOR, Ms. Indira Bhakar Adv., Ms. Neha Rai, Adv.

Union of India: Mr. Aishwarya Bhati, ASG Mr. Akshay Amritanshu, Adv Mr. B.V. Balram Das, AOR Mr. S.S. Rebello, Adv. Ms. Swati Ghildiyal, Adv. Mr. Prashant Singh B, Adv. Mr. G.S. Makker,Adv. Mr. Raj Bahadur, AOR Mr. Rana Mukherjee, Sr. Adv. Ms. Anitha Shenoy,Sr.Adv. Ms. Srishti Agnihotri, AOR Mr. Abhishek Jebaraj,Adv. Ms. Sanjana Grace Thomas,Adv. Ms. Anmol Gupta,Adv. Mr. Chandratanay Chaube, Adv.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.

The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).

The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.

It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.

Analysis and Decision

The material point for determination:

  • Whether Family Court was legally justified in granting custody of Sameera to Prakash?

Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.

Infact Prakash was the only who took care of Sameera.

One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.

It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.

Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.

Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.

Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.

Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.

Decision

Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.

Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.

In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.

Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.

Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.

Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]

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 BriefsForeign Courts

Singapore High Court (Family Division): A Three-Judge Bench comprising of Sundaresh Menon, CJ.,  Judith Prakash, JA., and  Debbie Ong, J., allowed an adoption order in the favor of a same-sex couple.

The facts of the case are that the appellant was a gay man.  He wanted to adopt his biological son who was conceived through in-vitro fertilization and was born in the US by a surrogate mother. She was paid by the appellant for her services. She then abdicated her parental rights over the child, whom the appellant and his partner then brought to Singapore.  In these circumstances, the principal question was whether an adoption order would serve the best interests of the child considering the parenting arrangement and the ethics of the means by which his birth was procured.  The court focused on the difficult interplay between law and public policy in the determination of this question. Here the court answered the question that whether or not the appellant should be allowed to adopt his son. It also discussed the appropriate methodology to be applied in determining and weighing the material considerations of public policy that may bear on this particular issue.

The court gave an adoption order in the favor of the appellants.  The Court, while doing this, held that in determining this question the main concern should be the welfare of the child. Attention must be given not only to his psychological and emotional development but also to the environment within which his sense of identity, purpose and morality will be cultivated. The Court held that the welfare of a child refers to his well-being in every aspect, that is, his well-being in the most exhaustive sense of that word. It refers to his physical, intellectual, psychological, emotional, moral and religious well-being. It refers to his well-being both in the short term and in the long term. The inquiry under the Adoption of Children Act requires an assessment of the impact of making an adoption order on the child’s welfare, and if the court is not satisfied that the impact of such an order would be for the child’s welfare, then the Court cannot make the order. The welfare of the child ought to define the scope of the inquiry.

The Court also held that the adoption of a child clearly concerns his “upbringing”, and therefore, an adoption proceeding must be a proceeding concerning the upbringing of a child within the meaning of Section 3 of the Act. Section 3 was said to apply “whatever the proceedings, as long as within such proceedings an issue of the custody or upbringing of a child arises”, such that the consideration of the child’s welfare is the “ubiquitous” standard by which all such proceedings are to be guided.

The Court next addressed the appellant’s submission that an adoption order should nevertheless not be made because it would be in violation of public policy. In the Court’s view, there was a legal basis, in Section 3(1) of the Act, for the Court to take public policy considerations into account in arriving at its decision in this case. In evaluating this submission, the first question that was addressed was whether there was any legal basis for the Court to take public policy considerations into account in arriving at its decision in this case. The Court held that there was both a statutory basis and a common law basis for doing so, although, having regard to the specific public policies that the appellant relies on, it is the statutory basis that was applied here.

The Court attributed significant weight to the concern not to violate the public policy against the formation of same-sex family units on account of its rational connection to this dispute and the degree to which this policy would be violated should an adoption order be made.

The Court said that neither of these reasons were sufficiently powerful to enable it to ignore the statutory imperative to promote the welfare of the child, and to regard his welfare as first and paramount. The welfare of the child should always be kept before public policy consideration. Thus the Court concluded that an adoption order ought to be made in this case. [UKM v Attorney-General, [2018] SGHCF 18, decided on 17-12- 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]