* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27.02.2020
Date of decision: 29-04-2020
+ CM(M) 1606/2019 CM Nos.48550/2019, 50153/2019,
2281/2020, 6227/2020
COL RAMNEESH PAL SINGH ….. Petitioner
Through: Mr.Kirtiman Singh, Adv.
Alongwith Mr. Saurabh D.
Karan Singh, Adv. and the
petitioner in person (Mob.
No. petitioner- 9815114411)
versus
SUGANDHI AGGARWAL ….. Respondent
Through: Respondent in person
(Mob.No.9891445445)
CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
1. It is stated that parental love is the only love that is truly selfless,
unconditional and forgiving, however, when the parents fight, they not
only fight amongst themselves but create cracks in their children’s
psychological well being. This can be totally unintended, but is a harsh
reality of life. The present case represents a similar circumstance.
2. The parties herein got married on 22.12.2002 and have been
blessed with two children; a daughter born on 23.09.2008 and a son born
on 01.12.2011. I have interacted with the parties and the children.
CM(M) 1606/2019 Page 1
3. The disputes between the parties escalated in August 2015 with the
petitioner accusing the respondent of having an affair with his fellow
officer. The petitioner at that time, being an Army Man, was posted at
Gulmarg. He took the children with him to Gulmarg, forcing the
respondent to file a petition, being GP No. 75/2015, under Section 25 of
the Guardians and Wards Act, 1890.
4. The present petition challenges the order dated 16.10.2017 passed
by the learned Additional Principal Judge, Family Court, Tis Hazari
Courts, Delhi in GP No. 75/2015, inter alia directing the petitioner herein
to hand over the custody of the children to the respondent after the final
examination of the children of the session 2017-18 is over.
5. Before filing the present petition, the petitioner had challenged the
Impugned Order dated 16.10.2017 by way of an appeal under Section 19
of the Family Courts Act, 1984, being MAT.APP.(F.C.) 211/2017. Vide
the judgment dated 01.10.2019, the said appeal was dismissed as not
maintainable. At the same time, the learned Family Court was directed to
dispose of the custody petition as expeditiously as possible.
6. Before considering the submission made by the learned Counsel
for the petitioner and the respondent, who appears in person, it would be
relevant to quote from the Impugned Order, the reasons given by the
learned Family Court for granting custody of the children to the
respondent:-
“13. Admittedly the respondent is an army officer and has
transferable job. Although during the course of arguments it
was submitted that he would be because of his familyCM(M) 1606/2019 Page 2
circumstances always getting the family stations in future but
there is no written assurance of the department of the
respondent in this regard. The allegations of adulterous
relations of the wife with Col Anil Kumar Gupta and other
allegations and counter allegations by the parties are questions
of facts and matter of enquiry/trial and at this stage is not
relevant for the decision of the interim custody application
under disposal. It is submitted by the petitioner that the kids
were removed to Gulmarg the place of posting of the
respondent which is not a family station but was field station
and from Gulmarg, Kashmir, children were brought to Bikaner
in special army train which took one week. There is no denial of
this submission. Now, children are with the respondent at
Mohali, Chandigarh, Punjab. It means that they will stay at
Mohali so long as the respondent is posted there. The parents
of the respondent reside with him who are elderly people. The
nature of duties of the respondent is onerous. It is not expected
from a highly placed army officer to keep his attention divided
between the work front and the home front. Although he claims
that his duty at Mohali is adjustable to the schedule of the kids
and he is available to them for their care and protection and
attend to their other needs but all these assertions are matter of
fact and trial. The case is at PE stage. Both the kids are not
mentally alienated from the petitioner and have been residing
with her since their birth till 09-08-2015 when they came in the
custody of the respondent. They are aligned to both the parents
equally. The respondent has alleged that to extract money, the
petitioner has filed this case. However, this is not the case of
maintenance of the petitioner but is a guardianship petition.
The respondent is apparently not allowing fruitful telephonic
conversation of the petitioner with the kids and it can very well
be noted that the programming of both the kids is being done as
per the wishes of the respondent which is not good for healthy
growth of both the kids who need the parental attention, love,
care and warmth, physical presences in sufficient amount of
both the parents to have actual impact of such attributes in
their lives. The kids by the action of the respondent in not
allowing access to the petitioner on regular basis on telephone
CM(M) 1606/2019 Page 3
and by physical meeting will alienate physically and mentally
from the petitioner which is not warranted for over all welfare
of the kids.
14. The petitioner is Delhi based and kids were in joint
custody of the parties at Delhi till 09-08-2015. Both the kids
were staying in Delhi prior to coming in the custody of the
respondent. If both the kids are allowed to resume their studies
in Delhi from next academic year 2018-2019 onwards it will
bring stability in pursuing their study at one place. On the other
hand if the custody of kids is allowed to be continued with the
respondent they will have to move on with the respondent to the
place of his posting or in the alternative the respondent shall
leave them with his parents to continue their study at Mohali
which will also not be a favourable proposition for the kids as
the parents of the respondent are old people.”
7. The learned counsel for the petitioner submits that in terms of
Section 6 of The Hindu Minority and Guardianship Act, 1956, the father
is the natural guardian of the children and as one is a boy child and the
other is a girl more than five years of age, even entitled to their custody.
He further submits that there was no reason for changing the custody of
the children by way of an interim order when the Guardianship Petition
itself was listed for recording of evidence. Relying upon the judgment of
the Supreme Court in Athar Hussain vs. Syed Siraj Ahmed and Others,
(2010) 2 SCC 654, he submits that in proceedings relating to the interim
custody, there have to be sufficient and compelling reasons to persuade
the Court to change the custody of the minor children; stability and
consistency in the affairs and routine of the children has to be kept in
mind by the Court in passing such orders. He submits that in the present
case, the learned Family Court has drawn an adverse inference against
the petitioner only because he is an Army Officer having a transferable
CM(M) 1606/2019 Page 4
job. He submits that this can never be a criteria for passing an order for
change of custody. He further submits that the learned Family Court has
not considered that the respondent is unemployed and lacks the financial
capacity to support the children. He further submits that as far as the
petitioner is concerned, the petitioner has taken all necessary steps to
ensure that the children are provided with the best of amenities and
comfort. The petitioner’s parents are presently staying with the petitioner
and the children are studying in the Army Public School at Mathura and
are performing well in their academics and extracurricular activities. The
learned Counsel for the petitioner submits that on the other hand, the
respondent would not be able to provide the children with such amenities
and possibilities of extracurricular activities in Delhi.
8. On the other hand, the respondent submits that the children were
forcibly taken away by the petitioner from her custody in August, 2015.
After exploring the possibility of a settlement, she had immediately filed
a petition seeking their custody and guardianship in November, 2015.
She submits that merely because the petition is pending for some time,
she cannot be denied the custody of the children only on the ground that
this may involve change of custody in the interim. She further submits
that the petitioner had taken the children forcibly to Gulmarg, which is a
Field Station, and thereafter to Bikaner, and then to Mohali, and finally to
Mathura. In this manner, the children have no stability in their lifestyle
and schooling. On the other hand, the respondent is staying in Delhi, is
highly educated and therefore, can provide stability to the children at
their tender age. She further submits that the girl child is now
CM(M) 1606/2019 Page 5
approaching the age of puberty and therefore, would require the support
of the mother.
CM(M) 1606/2019 Page 6
9. I have considered the submissions made by the parties. At the
outset, it would be advisable to refer to various judgments of the Supreme
Court which have laid down the law governing such disputes of custody
of the children.
10. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, the
Supreme Court held that the Court’s power under Section 25 of the Act is
to be governed primarily by the consideration of the welfare of the
minors concerned. Merely because there is no defect in the personal
character of the father and he is otherwise not unfit to be a guardian, is
not itself sufficient to grant the custody of the children to the father. The
Court is to be governed only by the consideration of welfare of the
children. I quote from the judgment as under:
“15….. The Court’s power under Section 25 of the
Guardians and Wards Act is also, in our opinion, to be
governed primarily by the consideration of the welfare of the
minors concerned. The discretion vested in the Court is, as
is the case with all judicial discretions to be exercised
judiciously in the background of all the relevant facts and
circumstances. Each case has to be decided on its own facts
and other cases can hardly serve as binding precedents, the
facts of two cases in this respect being seldom — if ever —
identical. The contention that if the husband is not unfit to
be the guardian of his minor children, then, the question of
their welfare does not at all arise is to state the proposition
a bit too broadly and may at times be somewhat misleading.
It does not take full notice of the real core of the statutory
purpose. In our opinion, the dominant consideration in
making orders under Section 25 is the welfare of the minor
children and in considering this question due regard has of
course to be paid to the right of the father to be the guardian
and also to all other relevant factors having a bearing on
CM(M) 1606/2019 Page 7
the minor’s welfare. There is a presumption that a minor’s
parents would do their very best to promote their children’s
welfare and, if necessary, would not grudge any sacrifice of
their own personal interest and pleasure. This presumption
arises because of the natural, selfless affection normally
expected from the parents for their children. From this point
of view, in case of conflict or dispute between the mother
and the father about the custody of their children, the
approach has to be somewhat different from that adopted by
the Letters Patent Bench of the High Court in this case.
There is no dichotomy between the fitness of the father to be
entrusted with the custody of his minor children and
considerations of their welfare. The father’s fitness has to be
considered, determined and weighed predominantly in terms
of the welfare of his minor children in the context of all the
relevant circumstances. If the custody of the father cannot
promote their welfare equally or better than the custody of
the mother, then, he cannot claim indefeasible right to their
custody under Section 25 merely because there is no defect
in his personal character and he has attachment for his
children–which every normal parent has. These are the
only two aspects pressed before us, apart from the stress
laid by the husband on the allegations of immorality against
the wife which, in our firm opinion, he was not at all
justified in contending. Such allegations, in view of earlier
decisions, had to be completely ignored in considering the
question of custody of the children in the present case. The
father’s fitness from the point of view just mentioned cannot
override considerations of the welfare of the minor children.
No doubt, the father has been presumed by the statute
generally to be better fitted to look after the children —
being normally the earning member and head of the family
— but the Court has in each case to see primarily to the
welfare of the children in determining the question of their
custody, in the background of all the relevant facts having a
bearing on their health, maintenance and education. The
family is normally the heart of our society and for a
balanced and healthy growth of children it is highly
CM(M) 1606/2019 Page 8
desirable that they get their due share of affection and care
from both the parents in their normal parental home. Where,
however, family dissolution due to some unavoidable
circumstances becomes necessary the Court has to come to
a judicial decision on the question of the welfare of the
children on a full consideration of all the relevant
circumstances. Merely because the father loves his children
and is not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of the
children would be better promoted by granting their custody
to him as against the wife who may also be equally
affectionate towards her children and otherwise equally free
from blemish, and, who, in addition, because of her
profession and financial resources, may be in a position to
guarantee better health, education and maintenance for
them. The children are not mere chattels : nor are they mere
play-things for their parents. Absolute right of parents over
the destinies and the lives of their children has, in the
modern changed social conditions, yielded 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. The approach of the learned
Single Judge, in our view, was correct and we agree with
him. The Letters Patent Bench on appeal seems to us to have
erred in reversing him on grounds which we are unable to
appreciate.
xxx
17. The respondent’s contention that the Court under the
Divorce Act had granted custody of the two younger
children to the wife on the ground of their being of tender
age, no longer holds good and that, therefore, their custody
must be handed over to him appears to us to be
misconceived. The age of the daughter at present is such
CM(M) 1606/2019 Page 9
that she must need the constant company of a grown-up
female in the home genuinely interested in her welfare. Her
mother is in the circumstances the best company for her. The
daughter would need her mother’s advice and guidance on
several matters of importance. It has not been suggested at
the bar that any grown-up woman closely related to Maya
alias Mary would be available in the husband’s house for
such motherly advice and guidance. But this apart, even
from the point of view of her education, in our opinion, her
custody with the wife would be far more beneficial than her
custody with the husband. The youngest son would also, in
our opinion, be much better looked after by his mother than
by his father who will have to work hard to make a mark in
his profession. He has quite clearly neglected his profession
and we have no doubt that if he devotes himself whole-
heartedly to it he is sure to find his place fairly high up in
the legal profession.”
11. In Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, the
Supreme Court held that no undue importance may be given to the
superior financial capacity of the husband as compared to the wife while
determining the question of the custody of the children.
12. In Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC
673, the Supreme Court reiterated that better financial resources of either
of the parent or their love for the child may be one of the relevant
consideration but cannot be the sole determining factor for the custody of
the child. The Court has to exercise the judicial discretion in the
background of all the relevant facts and circumstances, bearing in mind
the welfare of the child as the paramount consideration.
CM(M) 1606/2019 Page 10
13. In Nil Ratan Kundu Anr. v. Abhijit Kundu, (2008) 9 SCC 413,
the Supreme Court, on an exhaustive comparison of the English,
American and Indian law, held as under:
“52. In our judgment, the law relating to custody of a child
is fairly well settled and it is this: in deciding a difficult and
complex question as to the custody of a minor, a court of law
should keep in mind the relevant statutes and the rights
flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a human
problem and is required to be solved with human touch. A
court while dealing with custody cases, is neither bound by
statutes nor by strict rules of evidence or procedure nor by
precedents. In selecting proper guardian of a minor, the
paramount consideration should be the welfare and well-
being of the child. In selecting a guardian, the court is
exercising parens patriae jurisdiction and is
expected, nay bound, 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 we may say, 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.
xxx
55. We are unable to appreciate the approach of the courts
below. This Court in a catena of decisions has held that the
controlling consideration governing the custody of children
is the welfare of children and not the right of their parents.
56. In Rosy Jacob [(1973) 1 SCC 840] this Court stated:
(SCC p. 854, para 15)
CM(M) 1606/2019 Page 11
“15. … The contention that if the husband [father] is not
unfit to be the guardian of his minor children, then, the
question of their welfare does not at all arise is to state
the proposition a bit too broadly and may at times be
somewhat misleading.”
It was also observed that the father’s fitness has to be
considered, determined and weighed predominantly in terms
of the welfare of his minor children in the context of all the
relevant circumstances. The father’s fitness cannot override
considerations of the welfare of the minor children.
57. In our opinion, in such cases, 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.”
14. In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the
Supreme Court reiterated as under:
“48. Merely because there is no defect in his personal care
and his attachment for his children–which every normal
parent has, he would not be granted custody. Simply
because the father loves his children and is not shown to be
otherwise undesirable does not necessarily lead to the
conclusion that the welfare of the children would be better
promoted by granting their custody to him. 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
CM(M) 1606/2019 Page 12
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.
xxx
50. When the court is confronted with conflicting demands
made by the parents, each time it has to justify the
demands. The court has not only to look at the issue on
legalistic basis, in such matters human angles are relevant
for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli case [(2008)
7 SCC 673 : JT (2008) 6 SC 634] , the court has to give due
weightage to the child’s ordinary contentment, health,
education, intellectual development and favourable
surroundings but over and above physical comforts, the
moral and ethical values have also to be noted. They are
equal if not more important than the others.
51. The word “welfare” used in Section 13 of the Act 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.”
15. On the facts of that case, the Supreme Court further observed as
under:
“52. The trump card in the appellant’s argument is that
the child is living since long with the father. The
argument is attractive. But the same overlooks a veryCM(M) 1606/2019 Page 13
significant factor. By flouting various orders, leading
even to initiation of contempt proceedings, the appellant
has managed to keep custody of the child. He cannot be a
beneficiary of his own wrongs. The High Court has
referred to these aspects in detail in the impugned
judgments.
53. The conclusions arrived at and reasons indicated by
the High Court to grant custody to the mother do not in
our view suffer from any infirmity. It is true that taking
the child out of the father’s custody may cause some
problems, but that is bound to be neutralised.
54. Learned counsel for the appellant submitted that the
child’s education is of paramount importance and the
father is spending good amount of money for providing
him excellent education, and the mother does not have
the financial affluence as the appellant claims to have.
But that can be taken care of if father is asked to pay the
educational expenses of the child in addition to the
maintenance being paid to the respondent. But at the
same time it cannot be overlooked that the father needs
to have visitation rights to the child.”
16. In Athar Hussain v. Syed Siraj Ahmed Ors.(supra), the Court
held that the question of custody of the minor is different from the
question of guardianship. The father can continue to be natural guardian
of the child, however, the considerations pertaining to the welfare of the
child may indicate lawful custody with another friend or relative as
serving his/her interest better. The welfare of the child is the sole and
single yardstick to assess comparative merit of the parties contesting for
custody of the children. It was further held that the custody orders by
their nature can never be final, however, before a change is made it must
be proved to be in the paramount interest of the children. There have to
CM(M) 1606/2019 Page 14
sufficient and compelling reasons to persuade the Court to change the
custody of the minor children with immediate effect.
17. In Vivek Singh v. Romani Singh, 111(2017) SLT 5, this Court,
while dealing with almost similar circumstances as in the present case,
held as under:
“16. The aforesaid observations, contained in para 31 of
the order of the High Court extracted above, apply with
greater force today, when Saesha is 8 years’ old child. She is
at a crucial phase when there is a major shift in thinking
ability which may help her to understand cause and effect
better and think about the future. She would need regular
and frequent contact with each parent as well as shielding
from parental hostility. Involvement of both parents in her
life and regular school attendance are absolutely essential
at this age for her personality development. She would soon
be able to establish her individual interests and preferences,
shaped by her own individual personality as well as
experience. Towards this end, it also becomes necessary for
parents to exhibit model good behaviour and set healthy and
positive examples as much and as often as possible. It is the
age when her emotional development may be evolving at a
deeper level than ever before. In order to ensure that she
achieves stability and maturity in her thinking and is able to
deal with complex emotions, it is necessary that she is in the
company of her mother as well, for some time. This Court
cannot turn a blind eye to the fact that there have been
strong feelings of bitterness, betrayal, anger and distress
between the appellant and the respondent, where each party
feels that they are „right‟ in many of their views on issues
which led to separation. The intensity of negative feeling of
the appellant towards the respondent would have obvious
effect on the psyche of Saesha, who has remained in the
company of her father, to the exclusion of her mother. The
possibility of appellant’s effort to get the child to give up her
own positive perceptions of the other parent, i.e. the motherCM(M) 1606/2019 Page 15
and change her to agree with the appellant’s viewpoint
cannot be ruled out thereby diminishing the affection of
Saesha towards her mother. Obviously, the appellant,
during all this period, would not have said anything about
the positive traits of the respondent. Even the matrimonial
discord between the two parties would have been
understood by Saesha, as perceived by the appellant.
Psychologists term it as „The Parental Alienation Syndrome‟
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.) . 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 which 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.
17. The aforesaid discussion leads us to feel that continuous
company of the mother with Saesha, for some time, is
absolutely essential. It may also be underlying that the
notion that a child’s primary need is for the care and love of
its mother, where she has been its primary care giving
parent, is supported by a vast body of psychological
literature. Empirical studies show that mother-infant
“bonding” begins at the child’s birth and that infants as
young as two months old frequently show signs of distress
when the mother is replaced by a substitute caregiver. AnCM(M) 1606/2019 Page 16
infant typically responds preferentially to the sound of its
mother’s voice by four weeks, actively demands her presence
and protests her absence by eight months, and within the
first year has formed a profound and enduring attachment to
her. Psychological theory hypothesises that the mother is the
centre of an infant’s small world, his psychological
homebase, and that she “must continue to be so for some
years to come”. Developmental psychologists believe that
the quality and strength of this original bond largely
determines the child’s later capacity to fulfil her individual
potential and to form attachments to other individuals and to
the human community.
18. No doubt, this presumption in favour of maternal
custody as sound child welfare policy, is rebuttable and in a
given case, it can be shown that father is better suited to
have the custody of the child. Such an assessment, however,
can be only after level playing field is granted to both the
parents. That has not happened in the instant case so far.
19. It is also to be emphasised that her mother is a teacher
in a prestigious Kendriya Vidyalaya School. Saesha is
herself a school-going child at primary level. If Saesha is
admitted in the same school where her mother is teaching,
not only Saesha would be under full care and protection of
the mother, she would also be in a position to get better
education and better guidance of a mother who herself is a
teacher.
20. We, thus, find that the factors in favour of respondent
are weightier than those in favour of the appellant which
have been noted above. It is a fit case where respondent
deserves a chance to have the custody of child Saesha for
the time being, i.e. at least for one year, and not merely
visitation rights.
21. New academic session would start in April 2017. At this
time, the process of fresh admissions in schools is underway.
We are confident that the respondent shall be able to have
Saesha admitted in her school where she is teaching
inasmuch as wards of the teachers are accorded such
preferences. Therefore, the respondent is allowed to process
CM(M) 1606/2019 Page 17
the case of admission of Saesha in Kendriya Vidyalaya, INA
Colony, New Delhi and for this purpose the appellant shall
fully cooperate. In case she is able to secure the admission,
custody of Saesha shall be handed over to the respondent by
the appellant one week before the next academic session
starts. The custody shall remain with the respondent for full
academic year. The matter shall be listed in the month of
March 2018 for further directions when this Court would
assess as to how the arrangement devised above has worked
out. We, however, give liberty to both the parties to move
application for variation of the aforesaid arrangement, in
case consequences of the aforesaid arrangements turn out to
be such which necessitate alteration or modification in the
aforesaid arrangement.”
18. From the above judgments, it is clear that while considering the
claim of custody of a child, the Court acts in parens patriae jurisdiction
and is to be governed solely by the consideration of the welfare of the
child. In claim of custody of a child, the claim of Guardianship under
Section 6 of the Act or better financial resources of a parent or lack of
any adverse material against a parent or the fact that the parent truly loves
the child and has the welfare of the child in mind, though relevant, cannot
act as sole criteria for determining the welfare of the child and
consequently the claim of the custody of the child.
19. It is notably sad that in the present case, though the parties truly
love the children and have the welfare of the children as prime
consideration, they have rather left the issue of determination of the
welfare of the children to the Court as they could not themselves reach a
consensus over the same.
CM(M) 1606/2019 Page 18
20. In the present case, the girl child is around 11 ½ years old while
the boy is aged about 8 years. They both are school-going and after
having interacted with them, I find them to be confident and well
groomed. I further find that they do not prefer one of the parent over the
other. It is also evident from the record that till August, 2015, they were
in the custody of the respondent at Delhi, while the petitioner was posted
at Gulmarg. It is also evident that the respondent had filed the petition
seeking their custody almost immediately on them being taken away by
the petitioner. Merely because there was delay in adjudication of the
application for interim custody of the respondent by the Court, it cannot
be said that the petitioner acquired a better right over the respondent due
to such delay.
21. It is further evident from the record that on removing the children
from the custody of the respondent, the petitioner took them away to
Gulmarg, which was a Field Station and certainly was not conducive for
the welfare of the children. Thereafter, the children were shifted to
Bikaner, Rajasthan, thereafter to Mohali, Punjab and finally to Mathura,
Uttar Pradesh. In this manner, the children have not had a stable
environment. While this may not be the fault of the petitioner as being an
Army Man this is the requirement and the nature of the job, it is an
important consideration to be kept in view while determining the welfare
of the children. It is also relevant to note that the petitioner submits that
his next posting is due sometime in October, 2020 and he has been
assured that the same will be again at a peace station. However, the fact
that the posting is imminent and barring the word of the petitioner that he
CM(M) 1606/2019 Page 19
has been assured of a posting at a peace station, there is no assurance
from the Authorities proved on record to that effect, in my opinion,
would again be relevant consideration tilting the balance of the custody
of the children towards the mother.
22. It is also important to keep in view the age of the girl child who is
reaching the age of puberty and would require the support and guidance
of her mother. Though it may be true that the grandparents of the
children are staying with the petitioner and therefore, the grandmother
could also provide psychological support to the girl child, in my view,
there can be no better support than from the mother.
23. As far as the facilities that are available in the Cantonment area are
concerned, there is no reason to presently presume that the respondent
would not be able to provide the same to the children. In any case,
though relevant, they cannot outweigh the fact that the petitioner may
again be transferred, as per his own admission in October, 2020, and
there is no manner of knowing to which place.
24. The submissions of the petitioner that the respondent is presently
not working and therefore is not financially independent, again, as held
by the Supreme Court in the above referred judgments, cannot be a
criteria for determining the issue of the custody of the children.
25. The allegation of the petitioner that has led to the matrimonial
discord between the parties, is again not a matter that would presently
govern the issue of the custody of the children.
CM(M) 1606/2019 Page 20
26. The respondent, on the other hand, has submitted that if the
custody of the children is granted to her, she has no objection if the
petitioner is granted full visitation right to the children during their
holidays as also the holidays of the petitioner, provided that the same do
not in any manner prejudice the education of the children. In my opinion,
this would fairly ensure that the children are not deprived of the love and
affection of the petitioner and the joint parenthood of the parties.
27. The submission of the petitioner that the change of the custody of
the children could wait till the petitioner is transferred from Mathura, also
does not persuade me to defer the change of custody. October, 2020
would be in the middle of the academic session and would therefore
certainly cause inconvenience to the academic well-being of the children.
It would be very difficult to find an appropriate school for them at that
stage. At present, the new academic session in the schools is yet to start
and therefore, it would be advisable that if the schools of the children are
to be changed, it is done now rather than later.
28. It is also to be kept in view that this Court is exercising its
jurisdiction under Article 227of the Constitution of India. Unless the
order of the learned Family Court is found to be perverse or beyond its
jurisdiction, this Court cannot substitute its opinion for that of the learned
Family Court. No such case is made out by the petitioner.
29. This judgment was ready for pronouncement, however, due to the
lockdown declared by the Government of India because of COVID-19
pandemic, was not be pronounced earlier. This necessitated some change
in the final directions issued in this order as well.
CM(M) 1606/2019 Page 21
30. In view of the above, while upholding the order passed by the
learned Family Court, it is directed that the petitioner shall handover the
custody of the children to the respondent immediately on the opening of
schools for admission/transfer once the lockdown that has been declared
because of COVID-19 pandemic is lifted. It would be for the respondent
to inform the petitioner when she will like to take the custody of the
children and her decision in this regard shall be final as she can keep the
custody of the children only for a limited period as is provided
hereinafter. The petitioner shall also handover to the respondent all such
certificates as may be required by the respondent for the purpose of
securing admission of the children to a new school in Delhi. If the
respondent for any reason is unable to secure the admission of the
children in a new school, the respondent shall handover the custody of
the children back to the petitioner within a period of two weeks of
obtaining their custody, for them to attend their present schools without
any further loss of studies. The respondent shall also remain bound by
the statement that the petitioner shall be allowed unrestricted visitation
rights, including overnight custody of the children, during their vacations
and during the holidays of the petitioner. The parties shall be free to
move an appropriate application before the learned Family Court for
further directions with respect to the visitation rights and the custody of
the children, including for variation of the present arrangement in case
for any reason, the same requires any alteration or modification.
CM(M) 1606/2019 Page 22
30. The petition is disposed of in the above terms, with no order as to
costs.
NAVIN CHAWLA, J
April 29, 2020/rv/Arya
CM(M) 1606/2019 Page 23
