Custody Of Child: The Court Must Look Into Ordinary Comfort of The Child

Dsg vs. Akg, SLP No. 25098/2019 SC

Facts

There was the marital discord between the parties, the Respondent – father filed a Guardianship Petition bearing before the family court seeking custody of the minor daughter on the ground that the Petitioner – wife was suffering from Paranoid Schizophrenia and required treatment. Because of the mental illness,the wife treated the child with cruelty, and would prevent the father from meeting the child.
The wife by resisting the petition, 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.
The Family Court had given the custody of the Child to the father on the basis of Counsellors report. The order of the Family Court was further confirmed by the High Court.
The Petitioner (mother) approached Supreme Court and challenged the Interim Order of custody of the Child passed by the Delhi High Court.

Counselling Sessions

The court also arranged counselling sessions for the child and after referring to the reports of the Counsellors, held that the child has expressed her unequivocal desire to live only with the father. The child denied the allegations of sexual abuse by the father. Also, the child had shown the continuous interest to stay with her father and get rid of her mother’s custody and had stated that her father was taking good care of her, and that she wanted to live with her father only.

On the basis of this Counselling report the family 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. However, the court allowed the Mother to meet the child on 1st, 3rd and 4th Saturdays. The Delhi High Court relied on the report of the Counselling session.

Judgment:

The Supreme 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.
Also, after individually interviewing both the parents and the child the court was of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody.
The Court also referred Nil Ratan Kundu & Anr. v. Abhijit Kundu in which it was said 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 well being of the child.”

Therefore , the Hon’ble Supreme Court affirmed the Order passed by the Family Court granting custody of the minor daughter to the father. However, visitation rights were given to the Petitioner (mother).