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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 717 OF 2013

JITENDER ARORA & ORS. .....APPELLANT(S)

VERSUS

SUKRITI ARORA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Marriage between appellant No. 1 (hereinafter referred to as

the 'appellant') and respondent No. 1 (hereinafter referred to as

the  'respondent')  was  solemnized  sometime  in  the  year  1999,

which  was  got  registered  with  the  Registrar  of  Marriages,

Faridabad on 14.12.1999.  The parties lived thereafter till March

2000 in Faridabad.  However, carrying this notion that great future

lies  for  them  out  of  India,  the  couple  shifted  to  U.K.  on

23.03.2000.  Ms. Vaishali Arora was born out of this wedlock on

14.01.2002.  Career-wise or financially, whether the couple was

better off in U.K., is not known.  However, the soil of U.K. certainly

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did not prove conducive to their matrimonial relationship which,

with the passage of time, turned bad to worst and from sweet to

savoury to bitter.  So much so, legal battles started between them.

Eschewing the details in this behalf which are not needed and can

be  avoided  for  the  sake  of  brevity,  suffice  is  to  mention  that

respondent has taken decree of divorce from the Court in U.K.

Likewise, appellant who had shifted to India along with Vaishali in

2010, filed the petition for  divorce and has obtained decree of

divorce against  the respondent.   Both the divorce decrees are

ex-parte  against  each  other.   Fact  remains,  which  is  to  be

emphasised, that the appellant and respondent have put an end

to their matrimonial alliance and the aforesaid move on their part

clearly depicts that both of them wanted divorce from each other.

That is the reason that the aforesaid ex-parte divorce decrees are

not questioned by any of them.

2. As it  happens in  such cases,  an acrimonious and charged up

battle  between  the  appellant  and  the  respondent  has  got

concentrated  upon the custody of  Vaishali  Arora.   Though the

couple had moved to U.K. on 23.03.2000, Vaishali was born on

14.01.2002 in Holy Family Hospital, Delhi.  The respondent had

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come to India when she was pregnant and shortly after her birth,

she went back along with the appellant and the new born child.

Vaishali  came to  India  in  July, 2002  to  stay  with  her  paternal

grandparents  in  Faridabad  and  went  back  to  U.K.  in  January,

2003.  Matrimonial discord started erupting between the parties

thereafter.  Since both of them were having their permanent jobs,

the services of Katie Bradbury, a Child Minder were obtained by

them when Vaishali  was merely 13 months old.  In July, 2004,

both husband and wife and their child were granted permanent

resident status of U.K.  Thereafter, the parties had been coming

to India off  and on quite regularly.  Vaishali  was admitted in a

school in Camberley, U.K.  In July, 2007, Vaishali came to India

and joined Manav Rachna International School where she studied

upto March, 2008.  Thereafter, she again went back to U.K. where

she was admitted in a school.   On 07.02.2007, Pushti,  second

daughter, was born to the parties.   Thereafter, the matrimonial

relationship between the appellant and the respondent became

more  bitter  and  abusive.   Respondent  alleged  the  acts  of

domestic violence perpetrated upon her by the appellant.  Surrey

Social  Services  Department  investigated  into  the  issues  of

domestic  violence.   During  this  period,  the  impact  of  adverse

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relations between the spouses upon their child Vaishali was also

studied from psychological point of view by the officer of the said

Department and reports given from time to time.

3. In  June,  2007,  Vaishali  was  issued  Indian  Passport  by  Indian

High Commission in London.  On 04.08.2007, the appellant came

to India.   As pointed out  above,  Vaishali  had already come to

India and was admitted in a school in July, 2007.  The appellant

and  Vaishali  remained  in  India  till  April,  2008.   Even  the

respondent  decided  to  move  back  to  India  with  her  parents.

However, on 13.04.2008, the appellant went back to U.K.  The

respondent  remained  in  India  and  went  back  to  U.K.  in  May,

2009.  On reaching U.K., she lodged a complaint with the police

on 13.05.2009 to trace the whereabouts of Vaishali.  Thereafter,

she filed a case in the U.K. Court in which, on 04.06.2009, an

ex-parte  order  was  passed  prohibiting  the  appellant  from

removing two minor children from England and Wales.  Further,

restraint order was passed against the appellant from removing

Vaishali from attendance at Alwyn Infants School where she was

studying at that time.  The appellant filed cross application and it

led to further legal tussle between the parties wherein the Court

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passed orders from time to time.  It is in November, 2009 that the

respondent filed divorce proceedings against the appellant in a

Court in U.K. wherein she has been granted decree of divorce.

On 24.11.2009, as aforesaid, the appellant shifted to India along

with Vaishali.  In their absence, the respondent obtained British

Citizenship of Vaishali on 13.07.2010.  

4. Since  the  appellant  had  come  to  India  with  Vaishali,  the

respondent  filed  Habeas Corpus  Petition  bearing Criminal  Writ

Petition No. 712 of 2010 in the High Court of Punjab & Haryana

wherein she impleaded, apart from the appellant, his parents as

well as Vaishali, as respondents.  Other parties who were made

respondents  were  State  of  Haryana,  Senior  Superintendent  of

Police,  Haryana and Station House Officer, Police  Station City

Faridabad, Haryana.  This petition has been allowed by the High

Court vide judgment dated 25.05.2010 directing the appellant to

handover  the  custody  of  Vaishali  to  her  mother  i.e.  the

respondent.  It is this judgment which is impugned in the present

proceedings.

5. It  would  be  noticed  that  in  May, 2010,  when  the  petition  was

allowed, Vaishali was almost 8½ years of age.  Today, she is 15

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years old.

6. The Special Leave Petition (which is converted into the instant

appeal after the grant of special leave) was filed immediately after

the passing of the impugned judgment by the High Court, which

came up for hearing on 02.06.2010 before the Vacation Bench of

this Court.  While issuing notice in the petition, this Court stayed

the operation of the aforesaid judgment of the High Court.  That

stay order has remained in operation, as a consequence whereof

custody  of  the  child  continues  to  be  with  the  father.   The

respondent,  of  course,  has  been  granted  visitation  rights  from

time  to  time  as  and  when  she  came  to  India  and  moved  an

application in  this  behalf.   Such visitation rights  have normally

been for  the entire period of  her  stay in  India on these visits,

which range from seven days to even two months.  This fact is

highlighted to show that the respondent is given access to child

for  long  periods  as  well,  the  details  whereof  are  mentioned

hereafter.

7. When the case came up before this Court on 31.01.2013 (at that

time,  Vaishali  was 11 years of  age),  the Bench (comprising of

Aftab Alam and Ranjana Prakash Desai,  JJ.)  decided to  meet

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Vaishali in order to interact with her to ascertain her view point.

Thereafter, the matter came up for hearing on 02.04.2013 when

the following order was passed:

“In the proceedings held on January 31,  2013,  it was   agreed  between  the  parties  and  was  also noted  in  the  order  passed  on  that  date  that  the child Vaishali  should  stay  with  respondent  No.1 (Sukriti  Arora),  the  mother  of  the  child  at  her residence in Delhi for one month under monitoring by this Court.  

In continuation of that order, therefore, we direct  that  Vaishali  should  stay  with  her  mother, tentatively  for  one  month from today, subject to any further  direction  that  may be passed by this Court  in  the  meanwhile.   The  address  of respondent  No.1  where  she  will  stay  with  her daughter Vaishali is 6578, Sector-C,  Pocket-6&7, Vasant  Kunj,  Delhi  and  her  contact  number (mobile)is:9968661822.

Ms. Madhavi Divan, one  of  the  counsel representing the petitioner shall hand over the child to  her  mother-respondent  No.1  outside  the  court room after  we  complete  the  passing  of  this order.

Respondent   No.1   shall   deposit   her passport   with  the  Registrar  (J-III)  of  this  Court which shall be  returned  back  to her after Vaishali goes back to her father on  completion  of  the term of her stay with respondent No.1.

We are informed that  Vaishali's  school   is reopening  from  April  4,  2013.  On  behalf  of Respondent No.1, it is stated that she will ensure that  the  child  reaches  the  school  in  time  and  is brought back to her residence after  school  hours. The  child's stay with her mother will,  in no way, affect her attendance at the school or her studies.

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During her stay with the mother, the child will be free to speak to her  father  on  telephone (Mobile   No.  9968661822).  On  behalf  of respondent No.1, it was stated that she would not create  any  obstruction  in  the  way  of  the  child speaking to her father.   

During the child's stay with her mother, we would like some responsible and competent person to  monitor  the  arrangement.  We,  accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi High Court Mediation and Conciliation Centre,  to  monitor  the  arrangement  on  behalf  of this  Court.   Mrs.  Ramachandran  shall visit the mother and the child at the address  noted  above on  a date and time of her convenience. She would inform respondent No.1 on her mobile phone about the  proposed  date  and  time  of  her   visit  to  the respondent's  place.  She  would   see   how   the relationship between  the  child  and the mother is developing and if need be, she would counsel both the child and the mother.

If the father wants to visit the child while she is staying with her mother, he  may  do  so  at  a time  when  Mrs.  Sadhana Ramachandran is also present there.  For the purpose of the visit he  will have  to  take  the  necessary  permission   from Mrs. Ramachandran.

It  is  submitted  on  behalf  of  Respondent No.1 that she would like to take the child to some resort or some hill station  for  a brief holiday.  We would like the mother and the child to stay  in Delhi itself  but,  in  case,  both the child and the mother together wish to go outside, they may do so subject to   the   permission   in  writing  taken  from  Mrs. Ramachandran.

Mrs.  Ramachandran  would   submit   a report  to  this Court within ten days from today.

Let this matter be listed for further direction along  with the report from Mrs. Ramachandran on April 12, 2013.”`  

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8. Mrs. Sadhana Ramachandran, who monitored the arrangement

as per the directions contained in the aforesaid order submitted

her  report.   On  going  through  that  report,  further  order  dated

15.04.2013  was  passed  in  the  matter  and  we  reproduce  that

order as well in its entirety:

“Seen  the  report  submitted  by  Mrs.  Sadhana Ramachandran.

This  Court  is  thankful  to  Mrs. Ramachandran for  giving  her  valuable time and attention  and  for  acting  as   the   counselor  and the Court's agent in this arrangement.

We note that under the exigencies  of  the situation,   the mother  and the child  have shifted from the address  noted  in  the previous order and are now living at the following address:

Ms. Sukriti Arora, C/o. K.D. Prasher C-2633, Sushant Lok Phase – I, Gurgaon (Haryana).

The  shift  has  been   made   with   the permission   of Mrs. Ramachandran and with the consent of the father of the child.

The  arrangement  made  by  order   dated April  02,  2013  may continue for a period of one month from that date as indicated  in that order.

It  is,  however,  made  clear   that   while staying   with   her  mother, the  child  Vaishali  can speak to her  father  and  to  Mrs. Ramachandran as and when she wishes.

Both the petitioner and the respondent are directed to  pay heed  to  the  advice  of   Mrs.

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Ramachandran  and  take  part  in mediation, as suggested by her, with an open mind.

List on May 01, 2013.

Before  that  date,  Mrs.  Sadhana Ramachandran  is  requested  to  submit  a  final report.”

 9. On  01.05.2013,  this  Court  took  note  of  the  fact  that  the

respondent  was  leaving  for  U.K.   In  these  circumstances,

direction was given to her to return the custody of Vaishali to her

father i.e. the appellant.  The aforesaid background needs to be

kept in mind while deciding this custody dispute.   

10. We have gone through the  entire  record,  including  the  orders

passed  by  the  Courts  in  U.K.  from  time  to  time  in  various

proceedings.   In a recent judgment pronounced on 13.02.2017

delivered by this Court in the case of  Vivek Singh v.  Romani

Singh, of which one of us (A.K. Sikri, J.) was the member of the

Bench,  dilemma of  the Court  and the law on the subject  was

taken  note  of.   We reproduce  the  following  paras  of  the  said

judgment in order to make it self-contained in all respects:

“7. We have given our utmost serious consideration to the respective submissions which a case of this nature  deserves  to  be  given.  In  cases  of  this nature, where a child feels tormented because of the  strained  relations  between  her  parents  and ideally  needs  the  company  of  both  of  them,  it

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becomes, at times, a difficult choice  for the court to decide as to whom the custody should be given. No doubt, paramount consideration is the welfare of  the  child.   However,  at  times  the  prevailing circumstances  are  so  puzzling  that  it  becomes difficult  to  weigh  the  conflicting  parameters  and decide on which side the balance tilts.

8.  The Hindu Minority and Guardianship Act, 1956 lays down the principles on which custody disputes are to be decided.  Section 7 of this Act empowers the  Court  to  make  order  as  to  guardianship. Section 17 enumerates the matters which need to be considered by the Court in appointing guardian and  among  others,  enshrines  the  principle  of welfare of the minor child.  This is also stated very eloquently in  Section 13 which reads as under:

“13.   Welfare  of  minor  to  be  paramount consideration.

(1)   In  the  appointment  or  declaration  of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2)   No  person  shall  be  entitled  to  the guardianship by virtue of the provisions of this  Act  or  of  any  law  relating  to guardianship in marriage among Hindus, if the  court  is  of  opinion  that  his  or  her guardianship will not be for the welfare of the minor.”

9.   The Court  in  the  case of  Gaurav  Nagpal  v. Sumedha Nagpal1 stated in detail, the law relating to custody in England and America and pointed out that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the Court  rests on its  own inherent equality powers where the Court  acts as 'Parens

1 (2009) 1 SCC 42

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Patriae'.   The Court further observed that various statutes give legislative recognition to the aforesaid established  principles.   The  Court  explained  the expression 'welfare', occurring in Section 13 of the said Act in the following manner:

“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.

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 very 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.”

10.  We understand that the aforesaid 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 the optimal  growth  and  development  of  the  child primacy  over  other  considerations.  The  child  is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the child  is  least  affected  by  the  outcome,  the inevitability of the uncertainty that follows regarding the  child’s  growth  lingers  on  till  the  new  routine

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sinks in.  The effect  of  separation of  spouses,  on children, psychologically, emotionally and even to some  extent  physically,  spans  from  negligible  to serious, which could be insignificant to noticeably critical.  It  could  also  have  effects  that  are  more immediate  and  transitory  to  long  lasting  thereby having a significantly negative repercussion in the advancement of the child. While these effects don’t apply  to  every  child  of  a  separated  or  divorced couple,  nor  has  any  child  experienced  all  these effects,  the  deleterious  risks  of  maladjustment remains the objective of the parents to evade and the  court’s  intent  to  circumvent.  This  right  of  the child is also based on individual dignity.

11.   Second  justification  behind  the  'welfare' principle  is  the  public  interest  that  stand  served with the optimal  growth of  the children.  It  is  well recognised that children are the supreme asset of the  nation.   Rightful  place  of  the  child  in  the sizeable  fabric  has  been  recognised  in  many international covenants, which are adopted in this country  as  well.   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.  It  has been emphasised by this  Court  also,  time  and  again,  following observations in Bandhua Mukti Morcha v. Union of India & Ors.2:

“4. The child of today cannot develop to be a responsible  and  productive  member  of tomorrow's  society  unless  an  environment which is conducive to his social and physical health  is  assured  to  him.  Every  nation, developed or developing, links its future with the  status  of  the  child.  Childhood  holds  the potential and also sets the limit to the future development of the society. Children are the greatest gift to humanity. Mankind has the best hold of itself. The parents themselves live for them. They embody the joy of life in them and

2 (1997) 10 SCC 549

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in  the  innocence  relieving  the  fatigue  and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of  the  children.  The  children  signify  eternal optimism  in  the  human  being  and  always provide the potential for human development. If  the  children  are  better  equipped  with  a broader  human  output,  the  society  will  feel happy  with  them.  Neglecting  the  children means  loss  to  the  society  as  a  whole.  If children  are  deprived  of  their  childhood  — socially, economically, physically and mentally — the  nation  gets  deprived  of  the  potential human  resources  for  social  progress, economic empowerment and peace and order, the  social  stability  and  good  citizenry.  The Founding  Fathers  of  the  Constitution, therefore, have emphasised the importance of the role of the child and the need of its best development.”

12.  Same sentiments were earlier expressed in Rosy Jacob v. Jacob A. Chakramakkal3 in the following words:

“15.  ...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...”

13.  It hardly needs to be emphasised that a proper  education  encompassing  skill development, recreation and cultural activities has  a  positive  impact  on  the  child.  The children  are  the  most  important  human resources  whose  development  has  a  direct

3 (1973) 1 SCC 840

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impact on the development of the nation, for the child of today with suitable health, sound education and constructive environment is the productive  key  member  of  the  society.  The present of the child links to the future of the nation,  and  while  the  children  are  the treasures of their parents, they are the assets who  will  be  responsible  for  governing  the nation.  The  tools  of  education,  environment, skill  and  health  shape  the  child  thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public  and  contributing  to  economic progression. The growth and advancement of the  child  with  the  personal  interest  is accompanied by a  significant  public  interest, which arises because of the crucial role they play in nation building.”

11. In the case of  Vivek Singh, the girl was 8 years of age.  There

also, the child had remained with father for most of the period. It

was decided to give the custody to the mother.  Among others,

two weighty reasons which prevailed with this Court were the age

of the child, i.e. 8 years, and that during this period, custody had

remained with the father because of no fault of the mother.  This

is clear from the following discussion in the said judgment:

“14. In the instant case, the factors which weigh in favour  of  the  appellant  are  that  child  Saesha  is living with him from tender age of 21 months.  She is happy in his company.  In fact, her desire is to continue to live with the appellant. Normally, these considerations  would  have  prevailed  upon  us  to hold  that  custody  of  Saesha  remain  with  the appellant.   However, that  is only  one side of  the picture.  We cannot, at the same time, ignore the other side. A glimpse,  nay, a proper glance at the

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other side is equally  significant.  From the events that  took  place  and  noted  above,  following overwhelming  factors  in  favour  of  respondent emerge.

(a)  For first 21 months when the parties were living together, it is the respondent who had nursed the child.  The appellant cannot even claim to have an edge over the respondent during this period, when the  child  was  still  an  infant,  who  would  have naturally remained in the care and protection of the respondent  -  mother,  more  than  the  appellant  – father.  Finding to this effect has been arrived at by the  High  Court  as  well.   This  position  even otherwise cannot be disputed.

(b)  The respondent was forcibly deprived by the custody of Saesha from August 04, 2010 when she was forced to leave the matrimonial house.  As per the  respondent,  on  that  date  the  appellant  in  a drunken state gave beatings to her and threw her out of the house.  The respondent had called the police.   The  police  personnel  called  the  military police  and  a  complaint  was  lodged.   The respondent  had also called her parents who had come to her house from NOIDA.  Her parents took hold of the child and the appellant and when they were about to leave, the appellant pulled out the child from the hands of her mother and went inside the house and locked himself.   He was drunk at that time.  The police suggested not to do anything otherwise appellant would harm the child.  It  was assured that the child would be returned to her in the morning.  In any case, the respondent and the appellant  were  instructed  to  come  to  the  police along with the child, next morning.  The appellant did not bring the child and threatened that he would not give the child to her.  Since then, she had been running from pillar to post to get the child back but respondent had been refusing.

The  respondent,  therefore,  cannot  be blamed at all, if the custody of the child remained with  the  appellant,  after  the  separation  of  the parties.

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(c) Within  the  few  days,  i.e.  on  August  26, 2010,  the  respondent  filed  the  petition  seeking custody  of  the  child  and  for  appointment  of  her guardian.  She did not lose any time making her intentions  clear  that  as  a  natural  mother  she wanted to have the custody of the child.  It was her mis-fortune  that  the  trial  court  vide  its  judgment dated December 07, 2011 dismissed her petition. Though,  she  filed  the  appeal  against  the  said judgment immediately,  but during the pendency of the  appeal,  the  custody  remained  with  the appellant because of the dismissal of the petition by  the  Family  Court.   The  High  Court  has,  by impugned judgment dated April  02,  2013 granted the  custody  to  the  respondent.  However,  the respondent has not been able to reap the benefit thereof because of the interim orders passed in the instant  appeal.   It  is  in  these circumstances that child Saesha from the tender age of 21 months has remained  with  the  appellant  and  today  she  is  8 years and 3 months.   Obviously, because of  this reason, as of today, she is very much attached to the father and she thinks that she should remain in the  present  environment.   A child,  who  has  not seen,  experienced  or  lived  the  comfort  of  the company  of  the  mother  is,  naturally,  not  in  a position to comprehend that the grass on the other side may turn out to be greener.  Only when she is exposed  to  that  environment  of  living  with  her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father.  As of today, the assessment and perception are  one  sided.   Few  years  ago,  when  the  High Court passed the impugned judgment, the ground realities were different.

xxx xxx xxx

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

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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...”

12. The circumstances, in the present case, however, are materially

different.  Vaishali is a mature girl of 15 years of age.  At this age,

she  can  fully  understand  what  is  in  her  best  interest.   She is

competent  to  take  a  decision  for  herself.   There  has  been

interaction with her by different Benches of this Court from time to

time,  outcome whereof  is  reflected  in  the  orders  passed  after

such  meetings.   She  has  unequivocally  and  without  any

reservations expressed her desire to be with her father.  More

importantly, she  has  very  categorically  said  that  she  does  not

want to go to U.K.   

13. On 31.01.2013, this Court had noted that when her mother came

to India, she was not even willing to meet her.  However, with the

intervention  of  the  Court,  a  meeting  was  arranged  between

Vaishali and her mother.  Even after the said meeting, she was

not willing to live with the respondent, her mother.  Fully realising

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that it may be due to the reason that all this period, she had lived

with her father, the Court deemed it proper to give opportunity to

the respondent to win love, confidence and trust of Vaishali.  The

mother was allowed to stay for  one month with Vaishali.   This

order was continued on 02.04.2013 by extending the period by

another month.  This time the arrangement that was made was to

be  monitored  by  Mrs.  Sadhana  Ramachandran  who  was

appointed for this purpose.  Specific job given to Mrs. Sadhana

Ramachandran was to see how the relationship between the child

and  the  mother  is  developing.   In  case  of  need  she  was  to

counsel  both  the  child  as  well  as  the  mother.   Thus,  an

opportunity  was  given  to  the  respondent  by  allowing  her  the

access  of  Vaishali  for  significant  period  i.e.  till  01.05.2013,

whereafter the child was restored back to her father, since the

respondent had decided to go back to U.K.  It is unfortunate that

even during this period, she was not able to influence the thought

process of Vaishali who is determined to remain with her father.

14. In  fact,  during  the  course  of  arguments  before  us,  when  the

respondent  was  also  present,  we  asked the  respondent  as  to

whether she could shift to India, even temporarily for a year or so,

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as in that eventuality, the Court can consider giving custody of

Vaishali  to  her  for  that  period.   However,  she  expressed  her

inability  to  do so.   She wants  custody of  Vaishali  on her  own

terms.   She wants Vaishali  to  come to U.K.  and live with her.

Vaishali does not want to go to U.K. at all.  This Court cannot take

the  risk  of  sending  Vaishali  to  a  foreign  country,  against  the

wishes of  a  mature girl  like  Vaishali,  as  it  may prove to  be a

turbulent and tormenting experience for her.  That would not be in

her interest.   

15. We also had interaction with Vaishali in the Chambers earlier.  On

the date of hearing also, Vaishali was present in the Court and in

front of her parents, she unequivocally expressed that she was

happy with her father and wanted to continue in his company and

did not want to go with her mother, much less to U.K.  From the

interaction, it is clearly discernible that she is a mature girl who is

in a position to weigh the pros and cons of two alternatives and to

decide as to which course of action is more suited to her.  She

has  developed  her  personality  and  formed  her  opinion  after

considering  all  the  attendant  circumstances.   Her  intellectual

characteristics are adequately developed.  She is able to solve

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problems, think about her future and understands the long term

effects of the decision which she has taken.  We also find that she

has  been  brought  up  in  a  conducive  atmosphere.  It,  thus,

becomes apparent that in the instant case, we are dealing with

the custody of a child who is 15 years of age and has achieved

sufficient  level  of  maturity.   Further,  in  spite  of  giving  ample

chances  to  the  respondent  by  giving  temporary  custody  of

Vaishali  to  her, respondent  has not  been able to win over  the

confidence of Vaishali.  We, therefore, feel that her welfare lies in

the continued company of her father which appears to be in her

best interest.

16. The High Court in the impugned judgment had stated that since

Vaishali  was a minor  girl,  she needed company of  her  mother

more to understand girly things.  The High Court mentioned about

the bond between girl child and mother in abstract and from there

only the High Court came to the conclusion that it would be better

to give the custody to the mother.  The High Court did not go into

the specific situation and circumstances of this case and did not

make any  objective  assessment  about  the  welfare  of  Vaishali.

Many  circumstances  which  we  have  narrated  above  were  not

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taken note of.   

17. On the facts of the present case, we are convinced that custody

of the child needs to be with father.  She is already 15 years of

age and within 3 years, she would be major and all this custody

battle between her parents would come to an end.  She would

have complete freedom to decide the course of action she would

like to adopt in her life.  We, thus, allow this appeal and set aside

the judgment of the High Court.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; FEBRUARY 17, 2017.

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ITEM NO.1A              COURT NO.8               SECTION IIB (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal No. 717/2013 JITENDER ARORA & ORS.                           Appellant(s)

VERSUS SUKRITI ARORA & ORS.                            Respondent(s) Date : 17/02/2017  

This appeal was called on for pronouncement of judgment  today.

For Appellant(s) Mr. S. S. Jauhar, Adv.

                     For Respondent(s)

Mr. Viresh B. Saharya, Adv. Mr. Birendra Kumar Choudhry, Adv. Mr. Sanjay Kumar Visen, Adv.

                     Hon'ble Mr. Justice A. K. Sikri pronounced the

judgment  of  the  Bench  comprising  His  Lordship  and Hon'ble Mr. Justice R. K. Agrawal.

The  appeal  is  allowed  in  terms  of  the  signed reportable judgment.

In view thereof, pending applications, if any, stand disposed of.

              (Nidhi Ahuja)     (Mala Kumari Sharma)      Court Master     Court Master [Signed reportable judgment is placed on the file.]

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