Paramount consideration in case of custody of Child is Child’s welfare and well-being, disregarding Statutory provisions and strict rules of Evidence.

Harshit Sharma | Amity Law School, Madhya Pradesh | 16th December 2019

DSG v. AKG., Special Leave Petition (C.) No. 25098/2019

FACTS OF THE CASE

1. The present petitioner-mother and respondent-father had marital discord, in reference to which the Guardianship Petition was filed by the respondent in Family Court, Tis Hazari, New Delhi for seeking the custody of her Minor Daughter, Aged 12 Years, Born on 21.08.2007 and presently studying in Class VII of Holy Child Senior Secondary School, New Delhi.
2. The ground taken up by the respondent in the original suit was in respect that the petitioner mother was suffering with ‘PARANOID SCHIZOPHRENIA’ and also treated the child with cruelty and prevent him from meeting her minor daughter.
3. The petitioner resisted the same and made serious allegations in respect of the respondent-father stating that he molested the minor and also levelled serious allegations of sexual abuse against him, which made it unsafe for the child to be handed over her custody to the respondent, in respect of which the electronic and documentary evidence was leaded.
4. On the basis of the report submitted by 3 counsellors after meeting and interacting with the child, namely Mr. Sunil Sachdeva, Ms. Himali Anand and Dr. Uzma Perveen unanimously and concurrently observed that the mother was seriously suffering with the lethal disease of SCHIZOPHRENIA and non-treatment of the same will make the child vulnerable & will have a lasting psychological impact of the child. Furthermore, child categorically expressed her desire to live with the respondent and refuted all the allegations of the molestation and sexual abuse. Moreover, the reports showcased that the child seems to be happy in presence of father and in lieu of the same, the Family Court, Tis Hazari vide order dated 28.07.2018 and 16.11.2018, gave the interim custody to the respondent father.
5. The Petitioner challenged the aforementioned orders before the Hon’ble Delhi High Court, where by its order dated 26.03.2019 upheld the interim custody decision of the learned family court.

Aggrieved by the High Court’s order dated 26.03.2019, the present SLP is preferred before the Hon’ble Supreme Court of India.

ISSUES RAISED

1. Whether it is necessary to decide the custody of the child by giving primary importance to statutory rules, procedure or precedent?
2. What weightage shall be given to the testimony of the child, who is capable of rendering and making prudent & reasonable understanding about his/her welfare and well-being?

RULING OF THE COURT/ THE COURT HELD THAT

After analysing the reports of the 3 counsellors set up by the Family Court and having private interaction with the petitioner, respondent and child. The court is of the considerate view that:

1. Minor   girl   is   certainly   capable   of   forming   an   intelligent preference regarding her custody.
2. Unequivocal about her desire, the minor would like to reside with her father and she also stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities.
3. Reliance was placed on the leading case of Nil Ratan Kundu & Anr. v. Abhijit Kundu, quoting the following ratio and thus providing custody to the respondent and upholding the impugned order of High Court which upheld the decision of the Family Court:

‘While exercising the parens patriae jurisdiction, the Court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favourable surroundings. The Court os not bound either by statutes, nor by strict rules of evidence, nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and well-being of the child.’

Thus, the Family Court’s order dated 03.05.2019 was affirmed by which the interim custody was given to the respondent and this order would guide the visitation rights of the Petitioner. The SLP thereby stands disposed of.