REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C.) NO.25098/2019

DSG  …APPELLANT

versus

AKG        …RESPONDENT

O R D E R  

INDU MALHOTRA, J.  

1. The present Special Leave Petition has been filed by the

Petitioner – mother to challenge the Interim Order dated

26.03.2019 passed by the Delhi High Court in Matrimonial

Appeal (FC) 312/2018 with respect to the custody arrangement

of the minor daughter.

2. The minor daughter was born on 21.08.2007, and is now over

12 years old. The child is currently residing with the Respondent

– father, and is studying in Class VII in  Holy Child Senior

Secondary School, New Delhi.  

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3. On account of the marital discord between the parties, the

Respondent – father filed a Guardianship Petition bearing No.

G.P. 2266/2018 before the Family Court, Tis Hazari, New Delhi

seeking custody of the minor daughter on the ground that the

Petitioner – wife was suffering from Paranoid Schizophrenia and

required treatment. On account of the mental illness, the

Petitioner – wife treated the child with cruelty, and would

prevent the father from meeting the child.  

4. The Petitioner – mother resisted the Guardianship Petition, and

made serious allegations against the father that the minor

daughter was being molested by the father, who was guilty of

sexual abuse, which made it unsafe for the child to be in his

custody.

5. In the Guardianship Petition, the Family Court appointed Mr.

Sunil Sachdeva, Counsellor to interact with the child, and

submit a Report on her condition.  The Counsellor submitted his

Report dated 18.07.2018, wherein he has recorded that the

child complained of ill­treatment by the mother. The child

categorically stated that her father bestowed a lot of affection on

her, and that he had not committed any wrongful act upon her.

She stated that she  would like to stay  with  her father, and

wanted to be removed from the custody of her mother at the

earliest.   

6. The child was kept for one night on 18.07.2018 at  Nirmal

Chhaya  keeping her best interest in mind. She was produced

before the Family Court on 19.07.2018.  

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7. On 19.07.2018, the child was referred by the Family Court to

another Counsellor viz. Ms. Himali Anand. This Counsellor vide

her Report dated 19.07.2018 recorded that the child made

complaints about her mother and stated that she was not taking

proper care of her, and would not provide her with proper food,

etc. The child stated that her father was taking good care of her,

and that she wanted to live with her father only.

8. On 21.07.2018, the Family Court gave custody of the child to

the mother till  24.07.2018, after which the custody would be

handed over to the father.

9. On 27.07.2018, the mother requested for the appointment of an

independent Child Counselor to assess the mental and

psychological state of the child, and suggested the name of Dr.

Uzma Perveen to be appointed as a Counsellor.  

10. The  Family  Court  vide  Order  dated  28.07.2018 directed  Dr.

Uzma Perveen to conduct counselling sessions with the child,

and submit her Report to the Court.  

The Family Court further directed that the child would

remain in the custody of the mother from Saturday (after school

hours) till Monday 7 p.m., and with the father from Monday 7

p.m. till Saturday morning.  

11. Pursuant to the  Order  dated 28.07.2018,  Dr.  Uzma Perveen

held four  counselling  sessions  with the  child  on 31.07.2018,

07.08.2018, 14.08.2018 and 05.09.2018, and submitted her

Report dated 14.09.2018 before the Family Court. The

Counsellor after observing the behavior and conduct of the

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mother, opined that the mother showed symptoms of “Paranoid

Schizophrenia”, which required immediate assessment and

proper treatment, keeping in mind the welfare of the child. If the

mother’s condition remained untreated, it would make the child

vulnerable,  and would have a lasting psychological  impact on

the child.

12. The Petitioner – mother filed a Review Petition before the Family

Court, Tis Hazari seeking Review of Order dated 28.07.2018.  

The Family Court  vide  Order dated 16.11.2018 dismissed

the  Review Petition.  The  Court referred to the reports  of the

three Counsellors,  and held that the child has expressed her

unequivocal desire to live only with the father. She denied the

allegations of sexual abuse by the father. The Court held that

the child seemed to be very happy in the presence of the father,

and that there shall be no change in the interim custody of the

minor.

13. The Petitioner – mother challenged the Order dated 16.11.2018

passed by the Family Court before the High Court in MAT. APP

(F.C.) 312/2018.

14. During the pendency of the Appeal before the High Court, the

Petitioner – mother filed an Application u/S. 151 CPC before the

Family Court seeking custody of the minor daughter during the

vacations for 15 days.

15. The Family Court vide Order dated 27.02.2019 granted custody

of the daughter to the Petitioner – mother from 28.02.2019 to

10.03.2019 for vacations. The Petitioner – mother was directed

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to  make  a  video  call to the father every evening  during this

period. The custody of the child was to be handed over to the

Respondent – father on 11.03.2019.  

16. On 10.03.2019, the Petitioner – wife sent a text message to the

Respondent –  husband that she  was in  Goa  with the  minor

daughter, and would return only on 15.03.2019.

17. On 14.03.2019, the Respondent –  father filed an Application

u/S. 12 and 14 of the Contempt of Courts Act r.w. S.151 CPC

for contempt of the Orders dated 16.11.2018 and 27.02.2019

against the Petitioner – mother before the Family Court, since

the mother had refused to return the custody of the child.  

The Family Court took cognizance of non­compliance of

Orders by the Petitioner – mother, and  vide  Order dated

18.04.2019 directed the SHO, PS Rajouri Garden to locate the

whereabouts of the minor daughter, and produce her before the

Court.

18. The minor daughter was found at the residence of the

Petitioner – mother, and was produced before the Family Court

on 23.04.2019, when custody was handed over to the

Respondent – father.  

19. The Family Court vide Order dated 23.04.2019 suspended the

visitation rights granted to the Petitioner – mother till the next

date of hearing.  

20. By a  subsequent  Order  dated 03.05.2019, the  Family  Court

held  that further  visitation to  the Petitioner – mother  can be

allowed only in the Childrens’ Room, Tiz Hazari Complex, Delhi,

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where the mother could meet the child on every working 1st, 3rd

and 4th Saturday from 3 p.m. to 5 p.m., and on 2nd Friday from

3:30 p.m. to 5 p.m. The father agreed that as per the

convenience of the child, he would allow the mother to see the

child at the school gate in the morning before school hours.

This arrangement of visitation by the mother is continuing

ever since.

21. The  High  Court  vide  the impugned Order  dated  26.03.2019

dismissed the Appeal filed by the Petitioner – mother, and

confirmed the Orders dated 28.07.2018 and 16.11.2018 passed

by the Family Court.

The  High  Court  held that the three  Counsellors  Reports

indicated that the child was comfortable in the company of the

father, and wanted to live with him. The Court observed that the

video clippings submitted  by the Petitioner –  mother do  not

prima facie support her allegation of sexual abuse by the father.  

The Order dated 26.03.2019 passed by the High Court is

impugned  by the Petitioner – mother in the present  Special

Leave Petition.

22. This Court took up the present SLP for hearing on 25.10.2019

when Notice was issued. The Petitioner – mother submitted a

DVD containing some video clippings of the child. She placed on

record some additional documents in support of her contention

that the child was being allegedly molested by the Respondent –

father.  

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23. On 05.12.2019, the  Respondent –  husband  appeared  before

this Court in person along with his Counsel.  

We directed the Respondent ­ father to produce the child

before this Court on 10.12.2019.  

24. On 10.12.2019, both the parties and the minor daughter

appeared before us. We individually interviewed both the

parents and the child.  

Having interacted with the child, we are of the view that the

minor girl is certainly capable of forming an intelligent

preference regarding her custody.

We found the girl who is over 12 years of age, and is

studying in Class VII to be articulate, and unequivocal about her

definite  desire to reside  with her father.  She  stated  that  she

received love and affection from her father, who was taking care

of her food, education, and would assist her in her school

projects and activities.  

Reliance is  placed  on the judgment of this  Court in  Nil

Ratan Kundu & Anr.  v.  Abhijit Kundu1  that while exercising

parens  patriae  jurisdiction, the  Court is required  to  give  due

weight to the ordinary comfort of the child, contentment,

intellectual, moral and physical development, health, education

and general maintenance, and the favorable surroundings. The

Court is  not  bound either  by  statutes,  nor  by  strict rules  of

evidence, nor procedure or precedent. In deciding the issue of

custody, the paramount consideration should be the welfare and

well­being of the child.

1 (2008) 9 SCC 413 : 2008 (11) SCALE 437.  

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We hereby affirm the Order dated 03.05.2019 passed by the

Family  Court granting custody  of the  minor  daughter to the

father, and visitation rights to the Petitioner – mother as

specified in the Order.

The present Order is passed at an intermediate stage of the

proceedings, hence the findings recorded hereinabove are prima

facie in nature.  

The Special Leave Petition is disposed of accordingly.

Ordered accordingly.

Pending applications, if any, shall stand disposed of.

…..……...........................J. (UDAY UMESH LALIT)

..….……..........................J. (INDU MALHOTRA)

…....………………………….J. (KRISHNA MURARI)

New Delhi December 16, 2019.

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