“The children are not mere chattels; nor are they mere play-things for their parents,” High Court said.
The Delhi High Court was hearing a petition filed by a father against an interim custody order directing him to hand over the custody of the children to his wife.
Facts:
The parties herein got married in 2002 and have been blessed with two children; a daughter born in 2008 and a son born in 2011. The disputes between the parties escalated in August 2015 with the petitioner(husband) 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 under Section 25 of the Guardians and Wards Act, 1890.
Petition was filed in the Delhi High Court challenging the Order passed by the Additional Principal Judge, Family Court, inter alia directing the petitioner to hand over the custody of the children to the respondent after the final examination of the children of the session 2017-18 was over.
Before filing the petition in the High Court, the petitioner had challenged the Impugned Order by way of an appeal under Section 19 of the Family Courts Act, 1984. The said appeal was dismissed as not maintainable.
Petitioner’s case:
The petitioner’s submission was 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 submitted 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. It was further submitted 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. That, the Family Court has drawn an adverse inference against the petitioner only because he is an Army Officer having a transferable job and this can never be a criterion for passing an order for change of custody. That, the Family Court has not considered that the respondent is unemployed and lacks the financial capacity to support the children. That, the petitioner has taken all necessary steps to ensure that the children are provided with the best of amenities and comfort and extracurricular activities.
Respondent’s case:
The respondent submitted that the children were forcibly taken away by the petitioner from her custody 2015. After exploring the possibility of a settlement, she had immediately filed a petition seeking their custody and guardianship. She submitted 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 submitted 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 approaching the age of puberty and therefore, would require the support of the mother.
High Court’s observations:
The HC reflected 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 bench observed that the respondent was apparently not even 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, will alienate physically and mentally from the petitioner which is not warranted for overall welfare of the kids.
The High Court opined that,
“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 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.
“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.”
The Court stated that the stress laid by the husband on the allegations of immorality against the wife, was not at all justified as such allegations had to be completely ignored in considering the question of custody of the children in the present case. 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 bench relied on the judgement passed by the same court in Vivek Singh v. Romani Singh (2017 Latest Caselaw 126 SC), while dealing with almost similar circumstances, wherein it was held that,
“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. 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 hypothesises that the mother is the centre of an infant's small world, his psychological home base, 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.”
It was expounded by the High Court that,
“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.”
The bench noted 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, it is an important consideration to be kept in view while determining the welfare of the children, and tilts the balance of the custody of the children towards the mother.
The bench further noted that the girl child who is reaching the age of puberty, 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, there can be no better support than from the mother.
The Court further stated that 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.
High Court held:
The HC stated that the submissions of the petitioner that the respondent is presently not working and therefore is not financially independent, cannot be a criteria for determining the issue of the custody of the children. Even 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.
The High Court upheld the order passed by the Family Court, and 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.
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.
Bench: Justice Navin Chawla
Case Title: Col Ramneesh Pal Singh v. Sugandhi Aggarwal
Case Details: CM(M) 1606/2019 & CM Nos.48550/2019, 50153/2019, 2281/2020, 6227/2020
Counsel for Petitioner: Adv. Kirtiman Singh, Adv. Saurabh D. Karan Singh
Counsel for Respondent: Respondent in person
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