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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3962 OF 2016

VIVEK SINGH .....APPELLANT(S)

VERSUS

ROMANI SINGH .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The  appellant  and  the  respondent  tied  matrimonial  chord  on

November 25, 2007 as per Hindu rights and ceremonies.  The

appellant is an army officer posted in Meerut and the respondent

is a teacher in Kendriya Vidyala-3, INA Colony, New Delhi.  This,

so-called sacrosanct  alliance,  alluded the couple,  inasmuch as

soon after the marriage, matrimonial discord surfaced, which has

loosened the said knot. Both the parties blam each other for this

sordid state of affairs.  Over a period of time, relationship between

the parties has been ruined, which is unfortunate.  It is more so,

as they have not been able to move on in their respective lives as

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well.  But, what is more unfortunate is that the acrimony between

the two of them, because of which they are living separately for

quite some time, life of their only daughter Saesha Singh, who

was born from their wedlock on October 29, 2008, is becoming

more  and  more  miserable.  In  the  instant  appeal,  we  are

concerned with most delicate and difficult problem, namely, who

should be given the custody of Saesha Singh.   

2) It was on August 04, 2010, when the fight between the appellant

and the respondent took an ugly turn forcing the respondent to

leave the matrimonial house and the custody battle started from

that date itself,  when Saesha was not  even two years of  age.

While  leaving  the  matrimonial  house,  though  the  respondent

wanted to take the child along, the appellant did not allow her to

do so.   After  making certain peaceful  efforts in this behalf,  the

respondent filed petition being GS No. 43 of 2010 under Section

25 read with Sections 10 and 12 of the Guardians and Wards Act,

1980 (hereinafter referred to as the 'Act') on August 26, 2010 for

the  custody  and  appointment  of  the  Guardian  of  the  minor

daughter, Saesha Singh before the Principal Judge of the Family

Court at Delhi at Dwarka, New Delhi.  She stated in this petition

that she had been in continuous possession, care and protection Civil Appeal No. 3962 of 2016 Page 2 of 25

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of the child since her birth and the respondent had no love and

affection for the child. In his absence, when he is away for duty,

his Orderly looks after the girl  child.  She also alleged that the

appellant leaves for his office at 8.30 a.m. and returns back late in

the evening and, therefore, he is not in a position to look after the

basic needs of the child.  On the other hand, the respondent had

been  devoting  all  her  time  to  the  child  after  coming  from the

school  and  during  her  duties  in  the  school,  the  child  is  being

looked after by her parents who had been frequently visiting the

matrimonial house.  She pleaded that for the mental well-being

and proper upbringing of the child, her custody should be given to

the  respondent,  being  her  natural  mother  and  she  be  also

appointed as her guardian.  The appellant herein contested the

said petition by filing the written statement wherein he took the

stand that the respondent was not in a position to look after the

child as there is nobody to look after her when the respondent

goes for work.  He also mentioned that respondent's parents are

residing at NOIDA whereas she is working and living in Delhi.  On

the contrary, it is the appellant who had provided all necessary

expenses  for  the  maintenance  of  the  child,  and  even  the

respondent.   He  even  accused  the  respondent  for  invariably

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getting drunk on their visits to Army Officers Mess in the parties.

The trial court framed the issue which touches upon the dispute

that is whether the petitioner (the respondent herein) is entitled to

custody of the child.  Evidence was led by both the parties who

examined  themselves  as  PW-1  and  RW-1  respectively.   The

Principal  Judge,  Family  Court  was  of  the  opinion  that  the

appellant  is  fit  person  to  retain  the  custody  of  the  child  and,

therefore, dismissed the petition filed by the respondent herein.

The respondent challenged the order of the Family Court by filing

the appeal, i.e. FOA No. 39 of 2012 in the High Court which has

been allowed by the High Court.   The High Court has found it

appropriate  to  handover  the  custody  of  the  child  to  the

respondent/mother.   In  the  opinion  of  the  High  Court,  the

respondent, being mother of a girl child who was even less than

five years' of age at the relevant time, was better suited to take

care of the child and  this course of action is in the best interest of

the child.  The High Court,  in the process, found fault with the

approach adopted by the Family Judge, which had mainly relied

upon the incident of August 07, 2010 to deny the custody of the

child  to  the  respondent  on  the  ground  that  she  had  herself

abandoned  the  child  on  the  said  date.  According  to  the  High

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Court,  the  incident  as  narrated  by  the  appellant  was  not

believable  and the  version of  the respondent,  on  the contrary,

inspired confidence.  The respondent had stated that though she

wanted to take the child with her, the appellant had snatched her

from the respondent.  According to the High Court, if the intention

of the respondent was to abandon the child she would not have

taken her clothes with her.  The High Court also observed that the

Family Judge had failed to consider that from the  birth of the

child, i.e., October 29, 2008 till the separation of the parties on

August 04, 2010 (for a period of 21 months) the child remained

through  out  with  the  respondent  who  had  been  attending  her

school as well as taking care of the child after the school hours

and there was nothing on record to show that the respondent had

neglected the child for a single day during that period and it was

not even the case of the appellant.  

3) We may also mention, at this stage, that since the petition of the

respondent herein had been dismissed by the trial court, because

of this reason, custody of the child remained with the appellant,

during the pendency of the appeal in the High Court, though by

interim  arrangement  visitation  rights  were  given  to  the

respondent.  Since the appeal stood allowed by the High Court as Civil Appeal No. 3962 of 2016 Page 5 of 25

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per  which  custody  of  the  child  was to  be  handed over  to  the

respondent, the High Court in turn granted visitation rights to the

appellant, father of the child, in the following manner:

“33. Since the child is a school going child and respondent  is  living  at  Meerut,  in  these circumstances, respondent will be at liberty to take the child from the appellant on every 4th Friday of the month at 5.30 p.m. and the child shall  spend two  days  with  the  respondent.   The  child  shall remain  with  the  father  on  Friday  followed  by Saturday and Sunday.  The child shall be returned safely to the mother on Sunday at 6.00 P.M.

34.  Each year during Summer vacation custody of Baby  Saesha  Singh  would  be  entrusted  by  the appellant to the respondent for a period of 15 days to be inter-se agreed upon between the parties and in  case  of  any  non-agreement,  the  dates  ts  be decided by the4 learned Family Court.

35.   Each  year  during  Winter  vacations  Baby Saesha Singh would be entrusted by the appellant to  the  respondent  for  a  period  of  4  days  to  be inter-se agreed upon between the parties  and in case  of  any  non  -agreement,  the  dates  to  be decided by the learned Family Court.

36.   On  the  birthday  of  child,  custody  of  Baby Saesha  Singh  would  be  entrusted  to  the respondent for a period of 4 hours in the evening, the exact hours to be mutually agreed upon by the parties.”  

4) In special leave petition (now converted into instant appeal) notice

was issued on July 01, 2013.  As the appellant had not complied

with  the  direction  of  the  High  Court,  it  had  resulted  in  filing

contempt petition by the respondent against the appellant.  While Civil Appeal No. 3962 of 2016 Page 6 of 25

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issuing the notice, this Court  stayed those contempt proceedings

as well.   Consequence thereof is that the custody of  child has

remained with the appellant.  Visitation rights of the respondent,

however, as per interim arrangement vide orders dated February

21, 2012 by the High Court during the pendency of the appeal

were restored.  Thereafter, this Court has passed certain orders

for  handing  over  the  custody  of  the  child  during  festivals  or

vacations.

5) The instant appeal came up for arguments on November 22, 2016

when this Court directed that the child be brought to the court on

November 23, 2016 so that the Court is able to interact with her.

On November 23,  2016, after  some interaction,  it  was felt  that

since Saesha has remained in the company of her father for all

these  years,  influence  of  the  appellant  on  the  child  is

predominant.  She had even expressed her desire to remain with

the  appellant.  In  order  to  have  proper  psychological  and

sociological analysis of the desires of the child, this Court deemed

it  appropriate  to  take  the  services  of  Ms.  Iti  Kanungo,  who is

Principal Counsellor attached to the Family Court, Patiala House,

New Delhi.  She was also requested to come to the Court on that

day.  As Ms. Iti Kanungo was also present, she interacted with the Civil Appeal No. 3962 of 2016 Page 7 of 25

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child for quite some time and, thereafter, informed the Court that

some more interaction was needed.  For this purpose, a meeting

on  November  26,  2016  was  fixed  when  the  child  was  to  be

produced before  her  at  the  Family  Court,  Patiala  House,  New

Delhi.  After interaction with the child, Ms. Kanungo has submitted

her report dated December 12, 2016 stating that the child is more

interested in living with her father as she does not want to change

her  present  living  environment.   The report  also indicates  that

bitter relationship between her parents discomforts her and she

wants to sleep, play and study as per her own desire like any

normal kid.  At the same time, the report also observes that the

child is in a very sensitive phase of mental and physical growth.  

6) After  receiving  this  report,  we  had  heard  the  counsel  for  the

parties  at  length.   Mr.  V.  Shekhar,  learned  senior  counsel

appearing  for  the  appellant  took  umbrage  under  the  aforesaid

report  of  the Counsellor  and submitted that  since this was the

wish of the child as well, the appellant should be allowed to retain

the custody of the child.  He emphasised the fact that with effect

from October 05, 2010 when the child was only 21 months' old, it

is the father who has taken care of the child and, therefore, it was

in  the  best  interest  of  the  child  that  this  arrangement  is  not Civil Appeal No. 3962 of 2016 Page 8 of 25

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disturbed.  Ms. Geeta Luthra,  senior  counsel appearing for  the

respondent, countered the aforesaid submissions of the appellant

by contending that the High Court had discussed all the pros and

cons  of  the  issue  and  arrived  at  a  conclusion  that  the

respondent/mother was best person to take care of the child.  She

emphasised that having regard to the present age of the child,

who was little more than 8 years of age,  her welfare demands

that she be under the care and protection of the mother who is in

a better position to look after her.  She also submitted that the

High  Court  had,  by  impugned judgment  rendered  on  April  02,

2013, entrusted the custody to the respondent and only because

of  the  stay  of  contempt  proceedings  given  by  this  Court,  the

respondent is deprived of the custody of the child for all  these

years, and she should not be made to suffer the prejudice thereof.

She narrated the comparative circumstances of the job profile of

the appellant and the respondent in an endeavour to strengthen

her aforesaid submission with emphasis on the fact that normally

a girl  child wants to be with her mother.  Here, the respondent

being a teacher herself, is in a much better position to take care of

her education needs as well.

7) We have given our utmost serious consideration to the respective Civil Appeal No. 3962 of 2016 Page 9 of 25

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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 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

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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) This 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 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,

1 (2009) 1 SCC 42 Civil Appeal No. 3962 of 2016 Page 11 of 25

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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 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

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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 in  the  innocence  relieving  the  fatigue  and

2 (1997) 10 SCC 549 Civil Appeal No. 3962 of 2016 Page 13 of 25

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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 Civil Appeal No. 3962 of 2016 Page 14 of 25

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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.  

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 other side is equally Civil Appeal No. 3962 of 2016 Page 15 of 25

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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

Civil Appeal No. 3962 of 2016 Page 16 of 25

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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.

(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

Civil Appeal No. 3962 of 2016 Page 17 of 25

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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.   

15) While  coming to the conclusion that  the respondent as mother

was more appropriate to have the custody of the child and under

the  given  circumstances  the  respondent  herein  was  fully Civil Appeal No. 3962 of 2016 Page 18 of 25

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competent to take care of the child,  the High Court  proceeded

with the following discussion:

“31.  The role of the mother in the development of a child's personality can never be doubted.  A child gets the best protection through the mother.  It is a most natural thing for any child to grow up in the company  of  one's  mother.  The  company  of  the mother is the most natural thing for a child.  Neither the father nor any other person can give the same kind of lover, affection, care and sympathies to a child as that of a mother.  The company of a mother is  more  valuable  to  a  growing  up  female  child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother.  The company of the mother is always in the welfare of the minor child.

32.   It  may  be  noticed  that  the  stand  of  the appellant  is  that  since  August  04,  2010 she had been pursuing for  the custody of  her  child.   She had also visited the police station and approached the  CAW Cell.   It  is  also  admitted  position  that within 22 days, i.e., on August 26, 2010 the petition for the grant of custody of child was filed by her. Had she abandoned the child of her own she would not  have  pursued  continuously  thereafter  for getting  the  custody  of  the  child.  Even  she  had requested  the  learned  Principal  Judge,  Family Court  for  interim custody  of  the  child  which  was given to her in the form of visitation rights thrice in a month and she and her family had been meeting the child during that period. After filing the appeal, the appellant has been taking the interim custody of  the  child  as  is  stated  above.   In  thes3e circumstances, it cannot be said that the appellant has not care for the child.  Further, respondent  is any army Officer. During the course of his service he will be also getting non-family stations and it will be difficult for him to keep the child.  Further, even though as per him his parents are looking after the child but when the natural mother is there and has knocked the door  of  the  court  without  any delay and has all love and affection for the child and is

Civil Appeal No. 3962 of 2016 Page 19 of 25

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willing to do her duty with all love and affection and since the birth of the child she has been keeping the child.  In these circumstances, she should not be deprived of her right especially considering the tender  age  and  child  being  a  girl  child.   The grandparents  cannot  be  a  substitute  for  natural mother. There is no substitute for mother's love in this world.  The grandparents are old.  Old age has its own problems. Considering the totality of facts and circumstances, the welfare of the child lies with the mother, i.e, appellant who is educated, working and earning a good salary and after school hours has ample time to spend with the child.  In these circumstances,  impugned  order  is  set  aside  and the request of the appellant for the grant of custody of  the  said  child  to  her  being  natural  mother  is allowed  and  the  appellant  is  also  appointed  as guardian  of  her  child  being  a  natural guardian/mother.”

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.

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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  mother  and  change  her  to  agree  with  the

appellant's view point 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

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between the two parties would have been understood by Saesha,

as  perceived  by  the  appellant.   Psychologist  term  it  as  'The

Parental Alienation Syndrome'4.  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

4 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).  

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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.  An 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 hypothesizes

that  the  mother  is  the  center  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 fulfill  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 Civil Appeal No. 3962 of 2016 Page 23 of 25

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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 Vidyala 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  the  case  of  admission  of

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Saesha in Kendriya Vidyala, INA Colony, New Delhi and for this

purpose 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.  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.   

22) It is ordered accordingly.

.............................................J. (J. CHELAMESWAR)

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

NEW DELHI; FEBRUARY 13, 2017.

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