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Thursday, February 16, 2017

CUSTODY OF A CHILD - TO WHOM ? = 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. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant “bonding” begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. 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. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far. 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.- No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. 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.

                                                                  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 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.

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 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 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  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.

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 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.”

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 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.

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 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.

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 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.

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 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.

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.”


This Court in the case of Gaurav  Nagpal  v.  Sumedha  Nagpal[1]  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,  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.”


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
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.

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  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.”

Same  sentiments  were  earlier  expressed  in  Rosy  Jacob  v.   Jacob   A.
Chakramakkal[3] 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...”

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 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.

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
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.
(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.

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 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
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.”


The aforesaid observations, contained in para 31 of the order  of  the  High
Court extracted above, apply with greater force  today,  when  Saesha  is  8
years' old child.  She is at a crucial phase when there is a major shift  in
thinking ability which may help her to understand cause  and  effect  better
and think about the future. She would  need  regular  and  frequent  contact
with each parent as well as shielding from parental hostility.   Involvement
of both parents in her life and regular  school  attendance  are  absolutely
essential at this age for her personality development.  She  would  soon  be
able to establish her individual interests and preferences,  shaped  by  her
own individual personality as well as experience. Towards this end, it  also
becomes necessary for parents  to  exhibit  model  good  behaviour  and  set
healthy and positive examples as much and as often as possible.  It  is  the
age when her emotional development may be evolving at a  deeper  level  than
ever before. In order to ensure that she achieves stability and maturity  in
her thinking and is able to deal with  complex  emotions,  it  is  necessary
that she is in the company of her mother  as  well,  for  some  time.   This
Court cannot turn a blind eye to  the  fact  that  there  have  been  strong
feelings of bitterness, betrayal, anger and distress between  the  appellant
and the respondent, where each party feels that they are 'right' in many  of
their views on issues which led to separation.  The  intensity  of  negative
feeling of the appellant towards the respondent would  have  obvious  effect
on the psyche of Saesha, who has remained in the company of her  father,  to
the exclusion of her mother.  The possibility of appellant's effort  to  get
the child to give up her own  positive  perceptions  of  the  other  parent,
i.e., the 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 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.
The aforesaid discussion leads us to feel that  continuous  company  of  the
mother with Saesha, for some time, is absolutely essential.  It may also  be
underlying that the notion that a child's primary need is for the  care  and
love of its mother, where she has been its primary care  giving  parent,  is
supported by a vast body of  psychological  literature.   Empirical  studies
show that mother infant “bonding” begins  at  the  child's  birth  and  that
infants as young as two months old frequently show signs  of  distress  when
the mother is replaced by  a  substitute  caregiver.   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.

No doubt, this presumption in favour of  maternal  custody  as  sound  child
welfare policy, is rebuttable and in a given case,  it  can  be  shown  that
father is better  suited  to  have  the  custody  of  the  child.   Such  an
assessment, however, can be only after level playing  field  is  granted  to
both the parents.  That has not happened in the instant case so far.
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.

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.

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
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.

It is ordered accordingly.

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

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

NEW DELHI;
FEBRUARY 13, 2017.
-----------------------
[1]   (2009) 1 SCC 42
[2]   (1997) 10 SCC 549
[3]   (1973) 1 SCC 840

[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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