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Monday, February 20, 2017

Custody of Child = whether she could shift to India, even temporarily for a year or so, as in that eventuality, the Court can consider giving custody of Vaishali to her for that period. However, she expressed her inability to do so. She wants custody of Vaishali on her own terms. She wants Vaishali to come to U.K. and live with her. Vaishali does not want to go to U.K. at all. This Court cannot take the risk of sending Vaishali to a foreign country, against the wishes of a mature girl like Vaishali, as it may prove to be a turbulent and tormenting experience for her. That would not be in her interest. We also had interaction with Vaishali in the Chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocally expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to U.K. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her. She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and understands the long term effects of the decision which she has taken. We also find that she has been brought up in a conducive atmosphere. It, thus, becomes apparent that in the instant case, we are dealing with the custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, respondent has not been able to win over the confidence of Vaishali. We, therefore, feel that her welfare lies in the continued company of her father which appears to be in her best interest. The High Court in the impugned judgment had stated that since Vaishali was a minor girl, she needed company of her mother more to understand girly things. The High Court mentioned about the bond between girl child and mother in abstract and from there only the High Court came to the conclusion that it would be better to give the custody to the mother. The High Court did not go into the specific situation and circumstances of this case and did not make any objective assessment about the welfare of Vaishali. Many circumstances which we have narrated above were not taken note of. On the facts of the present case, we are convinced that custody of the child needs to be with father. She is already 15 years of age and within 3 years, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 717 OF 2013


|JITENDER ARORA & ORS.                      |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|SUKRITI ARORA & ORS.                       |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.
                 Marriage between appellant No. 1 (hereinafter  referred  to
as the 'appellant') and respondent No. 1 (hereinafter  referred  to  as  the
'respondent') was solemnized sometime  in  the  year  1999,  which  was  got
registered with the Registrar of Marriages, Faridabad  on  14.12.1999.   The
parties lived thereafter till March 2000 in  Faridabad.   However,  carrying
this notion that great future  lies  for  them  out  of  India,  the  couple
shifted to U.K. on 23.03.2000.  Ms. Vaishali Arora  was  born  out  of  this
wedlock on 14.01.2002.  Career-wise or financially, whether the  couple  was
better off in U.K., is not known.  However, the soil of U.K.  certainly  did
not prove conducive  to  their  matrimonial  relationship  which,  with  the
passage of time, turned bad to worst and from sweet to  savoury  to  bitter.
So much so, legal battles started between them.  Eschewing  the  details  in
this behalf which are not  needed  and  can  be  avoided  for  the  sake  of
brevity, suffice is to mention that respondent has taken decree  of  divorce
from the Court in U.K.  Likewise, appellant who had shifted to  India  along
with Vaishali in 2010, filed the  petition  for  divorce  and  has  obtained
decree of divorce against the respondent.  Both the divorce decrees are  ex-
parte against each other.  Fact remains, which is  to  be  emphasised,  that
the appellant and respondent have put an end to their  matrimonial  alliance
and the aforesaid move on their part  clearly  depicts  that  both  of  them
wanted divorce from each other.  That is the reason that the  aforesaid  ex-
parte divorce decrees are not questioned by any of them.

As it happens in such cases, an acrimonious and charged  up  battle  between
the appellant and the respondent has got concentrated upon  the  custody  of
Vaishali Arora.   Though  the  couple  had  moved  to  U.K.  on  23.03.2000,
Vaishali was born  on  14.01.2002  in  Holy  Family  Hospital,  Delhi.   The
respondent had come to India when she was pregnant  and  shortly  after  her
birth, she went back along with  the  appellant  and  the  new  born  child.
Vaishali came to India in July, 2002 to stay with her paternal  grandparents
in Faridabad and went back to U.K. in January,  2003.   Matrimonial  discord
started erupting between the parties thereafter.  Since both  of  them  were
having their permanent jobs, the services of Katie Bradbury, a Child  Minder
were obtained by them when Vaishali was merely  13  months  old.   In  July,
2004, both husband and wife and their child were granted permanent  resident
status of U.K.  Thereafter, the parties had been coming to India off and  on
quite regularly.  Vaishali was admitted in a school in Camberley,  U.K.   In
July, 2007, Vaishali came to India and  joined  Manav  Rachna  International
School where she studied upto March, 2008.  Thereafter, she again went  back
to U.K. where she was admitted in a school.  On 07.02.2007,  Pushti,  second
daughter,  was  born  to   the   parties.    Thereafter,   the   matrimonial
relationship between the appellant and the  respondent  became  more  bitter
and abusive.  Respondent alleged the acts of domestic  violence  perpetrated
upon her by the appellant.  Surrey Social Services  Department  investigated
into the issues of domestic violence.  During this  period,  the  impact  of
adverse relations between the spouses upon their  child  Vaishali  was  also
studied from psychological  point  of  view  by  the  officer  of  the  said
Department and reports given from time to time.

In  June,  2007,  Vaishali  was  issued  Indian  Passport  by  Indian   High
Commission in London.  On 04.08.2007,  the  appellant  came  to  India.   As
pointed out above, Vaishali had already come to India and was admitted in  a
school in July, 2007.  The appellant and Vaishali  remained  in  India  till
April, 2008.  Even the respondent decided to move back  to  India  with  her
parents.  However, on 13.04.2008, the  appellant  went  back  to  U.K.   The
respondent remained in India and  went  back  to  U.K.  in  May,  2009.   On
reaching U.K., she lodged a complaint  with  the  police  on  13.05.2009  to
trace the whereabouts of Vaishali.  Thereafter, she  filed  a  case  in  the
U.K.  Court  in  which,  on  04.06.2009,  an  ex-parte  order   was   passed
prohibiting the appellant from removing two minor children from England  and
Wales.  Further, restraint order  was  passed  against  the  appellant  from
removing Vaishali from attendance at Alwyn  Infants  School  where  she  was
studying at that time.  The appellant filed cross application and it led  to
further legal tussle between the parties wherein  the  Court  passed  orders
from time to time.  It is  in  November,  2009  that  the  respondent  filed
divorce proceedings against the appellant in a Court  in  U.K.  wherein  she
has been granted decree  of  divorce.   On  24.11.2009,  as  aforesaid,  the
appellant shifted to India along  with  Vaishali.   In  their  absence,  the
respondent obtained British Citizenship of Vaishali on 13.07.2010.

Since the appellant had come to India with Vaishali,  the  respondent  filed
Habeas Corpus Petition bearing Criminal Writ Petition No.  712  of  2010  in
the High Court of Punjab & Haryana wherein she  impleaded,  apart  from  the
appellant, his parents as well as Vaishali, as respondents.   Other  parties
who were made respondents were State of Haryana,  Senior  Superintendent  of
Police, Haryana and Station House Officer, Police  Station  City  Faridabad,
Haryana.  This petition has been allowed by the  High  Court  vide  judgment
dated  25.05.2010  directing  the  appellant  to  handover  the  custody  of
Vaishali to her mother i.e. the respondent.  It is this  judgment  which  is
impugned in the present proceedings.

It would be noticed that in  May,  2010,  when  the  petition  was  allowed,
Vaishali was almost 8½ years of age.  Today, she is 15 years old.

The Special Leave Petition (which  is  converted  into  the  instant  appeal
after the grant of special leave) was filed immediately  after  the  passing
of the impugned judgment by the High Court, which came  up  for  hearing  on
02.06.2010 before the Vacation Bench of this Court.   While  issuing  notice
in the petition, this Court stayed the operation of the  aforesaid  judgment
of the High Court.   That  stay  order  has  remained  in  operation,  as  a
consequence whereof custody of the child continues to be  with  the  father.
The respondent, of course, has been granted visitation rights from  time  to
time as and when she came to India and moved an application in this  behalf.
 Such visitation rights have normally been for  the  entire  period  of  her
stay in India on these visits, which range  from  seven  days  to  even  two
months.  This fact is highlighted to  show  that  the  respondent  is  given
access to child for long periods as well, the details whereof are  mentioned
hereafter.

When the case came up  before  this  Court  on  31.01.2013  (at  that  time,
Vaishali was 11 years of age), the  Bench  (comprising  of  Aftab  Alam  and
Ranjana Prakash Desai, JJ.) decided to meet Vaishali in  order  to  interact
with her to ascertain her view point. Thereafter, the  matter  came  up  for
hearing on 02.04.2013 when the following order was passed:
“In the proceedings held on January 31, 2013, it  was   agreed  between  the
parties and was also noted in the order passed on that date that  the  child
Vaishali  should  stay  with  respondent  No.1 (Sukriti Arora),  the  mother
of the child at her residence in Delhi for one  month  under  monitoring  by
this Court.

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

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

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

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

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

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

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

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

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

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

Mrs.  Sadhana  Ramachandran,  who  monitored  the  arrangement  as  per  the
directions contained in the aforesaid order submitted her report.  On  going
through that report, further  order  dated  15.04.2013  was  passed  in  the
matter and we reproduce that order as well in its entirety:
“Seen the report submitted by Mrs. Sadhana Ramachandran.

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

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

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

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

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

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

            Both the petitioner and the  respondent  are  directed  to   pay
heed   to   the   advice   of   Mrs.   Ramachandran   and   take   part   in
mediation, as suggested by her, with an open mind.

            List on May 01, 2013.

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

On 01.05.2013, this Court took note of the  fact  that  the  respondent  was
leaving for U.K.  In these circumstances, direction  was  given  to  her  to
return the custody of Vaishali  to  her  father  i.e.  the  appellant.   The
aforesaid background needs to be kept in mind while  deciding  this  custody
dispute.

We have gone through the entire record, including the orders passed  by  the
Courts in U.K. from time to  time  in  various  proceedings.   In  a  recent
judgment pronounced on 13.02.2017 delivered by this Court  in  the  case  of
Vivek Singh v. Romani Singh, of which one of us (A.K.  Sikri,  J.)  was  the
member of the Bench, dilemma of the Court and the law  on  the  subject  was
taken note of.  We reproduce the following paras of  the  said  judgment  in
order to make it self-contained in all respects:
“7. We have  given  our  utmost  serious  consideration  to  the  respective
submissions which a case of this nature deserves to be given.  In  cases  of
this  nature,  where  a  child  feels  tormented  because  of  the  strained
relations between her parents and ideally  needs  the  company  of  both  of
them, it becomes, at times, a difficult choice  for the court to  decide  as
to whom the custody should be given.  No doubt, paramount  consideration  is
the welfare of the child.  However, at times  the  prevailing  circumstances
are  so  puzzling  that  it  becomes  difficult  to  weigh  the  conflicting
parameters and decide on which side the balance tilts.

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

“13.  Welfare of minor to be paramount consideration.

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

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

9.  The Court in the case of Gaurav Nagpal v. Sumedha  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.”

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
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  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.
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...”

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 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 case of Vivek Singh, the girl was 8 years of age.   There  also,  the
child had remained with father for most of the period.  It  was  decided  to
give the custody to the mother.  Among others,  two  weighty  reasons  which
prevailed with this Court were the age of the child, i.e. 8 years, and  that
during this period, custody had remained  with  the  father  because  of  no
fault of the mother.  This is clear from the  following  discussion  in  the
said judgment:
“14. In the  instant  case,  the  factors  which  weigh  in  favour  of  the
appellant are that child Saesha is living with him from  tender  age  of  21
months.  She is happy in his company.  In fact, her desire  is  to  continue
to live with  the  appellant.  Normally,  these  considerations  would  have
prevailed upon us to hold that custody of Saesha remain with the  appellant.
 However, that is only one side of the picture.   We  cannot,  at  the  same
time, ignore the other side. A glimpse, nay, a proper glance  at  the  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.

                         xxx         xxx        xxx

16.  The aforesaid observations, contained in para 31 of the  order  of  the
High Court extracted above, apply with greater force today, when  Saesha  is
8 years' old child.  She is at a crucial phase when 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...”

The circumstances, in the present case, however, are  materially  different.
Vaishali is a mature girl of 15 years of age.  At this age,  she  can  fully
understand what is in her  best  interest.   She  is  competent  to  take  a
decision for herself.  There has been  interaction  with  her  by  different
Benches of this Court from time to time, outcome  whereof  is  reflected  in
the orders passed after such meetings.  She has  unequivocally  and  without
any  reservations  expressed  her  desire  to  be  with  her  father.   More
importantly, she has very categorically said that she does not  want  to  go
to U.K.

On 31.01.2013, this Court had noted that when her mother came to India,  she
was not even willing to meet her.  However, with  the  intervention  of  the
Court, a meeting was arranged between Vaishali and her mother.   Even  after
the said meeting, she was not willing  to  live  with  the  respondent,  her
mother.  Fully realising that it may be due to  the  reason  that  all  this
period, she had lived with her father, the Court deemed it  proper  to  give
opportunity  to  the  respondent  to  win  love,  confidence  and  trust  of
Vaishali.  The mother was allowed to  stay  for  one  month  with  Vaishali.
This order was continued on 02.04.2013 by extending the  period  by  another
month.  This time the arrangement that was made was to be monitored by  Mrs.
Sadhana Ramachandran who was  appointed  for  this  purpose.   Specific  job
given to Mrs. Sadhana Ramachandran was to see how the  relationship  between
the child and the mother is developing.  In case of need she was to  counsel
both the child as well as the mother.  Thus, an  opportunity  was  given  to
the respondent by allowing  her  the  access  of  Vaishali  for  significant
period i.e. till 01.05.2013, whereafter the child was restored back  to  her
father, since the  respondent  had  decided  to  go  back  to  U.K.   It  is
unfortunate that even during this period, she was not able to influence  the
thought process of Vaishali who is determined to remain with her father.

In fact, during the course of arguments before us, when the  respondent  was
also present, we asked the respondent as  to  whether  she  could  shift  to
India, even temporarily for a year or so, as in that eventuality, the  Court
can consider giving custody of Vaishali to her for  that  period.   However,
she expressed her inability to do so.  She wants custody of Vaishali on  her
own terms.  She wants Vaishali to come to U.K. and live with her.   Vaishali
does not want to go to U.K. at all.  This Court  cannot  take  the  risk  of
sending Vaishali to a foreign country, against the wishes of a  mature  girl
like Vaishali, as it may prove to be a turbulent and  tormenting  experience
for her.  That would not be in her interest.

We also had interaction with Vaishali in the Chambers earlier.  On the  date
of hearing also, Vaishali was present in the  Court  and  in  front  of  her
parents, she unequivocally expressed that she was happy with her father  and
wanted to continue in his company and did not want to go  with  her  mother,
much less to U.K.  From the interaction, it is clearly discernible that  she
is a mature girl who is in a position to weigh the  pros  and  cons  of  two
alternatives and to decide as to which course of action is  more  suited  to
her.  She has  developed  her  personality  and  formed  her  opinion  after
considering   all   the   attendant   circumstances.     Her    intellectual
characteristics are adequately developed.  She is able  to  solve  problems,
think about her  future  and  understands  the  long  term  effects  of  the
decision which she has taken.  We also find that she has been brought up  in
a conducive atmosphere. It, thus,  becomes  apparent  that  in  the  instant
case, we are dealing with the custody of a child who is 15 years of age  and
has achieved sufficient level of maturity.   Further,  in  spite  of  giving
ample chances to the respondent by giving temporary custody of  Vaishali  to
her, respondent has not been able to win over the  confidence  of  Vaishali.
We, therefore, feel that her welfare lies in the continued  company  of  her
father which appears to be in her best interest.

The High Court in the impugned judgment had stated that since  Vaishali  was
a minor girl, she needed company of her  mother  more  to  understand  girly
things.  The High Court mentioned about the  bond  between  girl  child  and
mother in  abstract  and  from  there  only  the  High  Court  came  to  the
conclusion that it would be better to give the custody to the  mother.   The
High Court did not go into the specific situation and circumstances of  this
case and did  not  make  any  objective  assessment  about  the  welfare  of
Vaishali. Many circumstances which we have narrated  above  were  not  taken
note of.

On the facts of the present case, we  are  convinced  that  custody  of  the
child needs to be with father.  She is already 15 years of age and within  3
years, she would be major and all this custody battle  between  her  parents
would come to an end.  She would have complete freedom to decide the  course
of action she would like to adopt in her life.  We, thus, allow this  appeal
and set aside the judgment of the High Court.
                 No costs.

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



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

NEW DELHI;
FEBRUARY 17, 2017.
ITEM NO.1A              COURT NO.8               SECTION IIB
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal No. 717/2013

JITENDER ARORA & ORS.                           Appellant(s)

                                   VERSUS

SUKRITI ARORA & ORS.                            Respondent(s)

Date : 17/02/2017
      This appeal was called on for pronouncement of judgment today.


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

For Respondent(s)
                       Mr. Viresh B. Saharya, Adv.

                       Mr. Birendra Kumar Choudhry, Adv.
                       Mr. Sanjay Kumar Visen, Adv.


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

            The  appeal  is  allowed  in  terms  of  the  signed  reportable
judgment.
            In view thereof, pending applications, if  any,  stand  disposed
of.


      (Nidhi Ahuja)               (Mala Kumari Sharma)
           Court Master                    Court Master

             [Signed reportable judgment is placed on the file.]
                           -----------------------
[1]
      (2009) 1 SCC 42
[2]   (1997) 10 SCC 549
[3]   (1973) 1 SCC 840

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