Vivek Singh Vs Romani Singh – CIVIL APPEAL NO. 3962 OF 2016 – SC Feb 2017
Above SC judgment recognized the phenomenon of Parental Alienation Syndrome which children undergoing situation of separated/divorced parents can go through.
Excerpt from judgment below:
+
Psychologist term it as ‘The Parental Alienation Syndrome’ . It has at least two psychological 4 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.
In above case, it was the father who had custody of child. However, Supreme Court ruled that the mother had been trying for custody as well as regularly meeting child during visitations, and was awarded custody of 8 years old daughter for 1 year.
Comments:
- Above judgment can be used in cases where father has been involved with child by meeting regularly during visitations etc, even though he does not have any more meaningful custody of child like overnight or few days custody.
- The logic is that while the parental roles of custodial and non-custodial parent are reversed in above SC judgment, similar logic can very well apply in case where father is the non-custodial parent, but he has been regularly meeting the child and it can be clearly shown on record that he has shown interest in custody proceedings throughout.
- It would be desirable that father files custody case without much delay after separation from child. In above judgment too, this factor was seen to be important that the mother who was non-custodial parent had filed for child custody immediately after separation from child.
——————————————–
Full judgment text below:
——————————————–
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
1
Civil Appeal No. 3962 of 2016 Page of 25
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.
2) 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
2
Civil Appeal No. 3962 of 2016 Page of 25
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
3
Civil Appeal No. 3962 of 2016 Page of 25
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
4
Civil Appeal No. 3962 of 2016 Page of 25
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.
3) 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
5
Civil Appeal No. 3962 of 2016 Page of 25
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
th
the child from the appellant on every 4 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.”
4) 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
6
Civil Appeal No. 3962 of 2016 Page of 25
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.
5) 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
7
Civil Appeal No. 3962 of 2016 Page of 25
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.
6) 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
8
Civil Appeal No. 3962 of 2016 Page of 25
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.
7) We have given our utmost serious consideration to the respective
9
Civil Appeal No. 3962 of 2016 Page of 25
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
10
Civil Appeal No. 3962 of 2016 Page of 25
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) 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,
1 (2009) 1 SCC 42
11
Civil Appeal No. 3962 of 2016 Page of 25
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
12
Civil Appeal No. 3962 of 2016 Page of 25
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
v.
Morcha 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
2 (1997) 10 SCC 549
13
Civil Appeal No. 3962 of 2016 Page of 25
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
3 (1973) 1 SCC 840
14
Civil Appeal No. 3962 of 2016 Page of 25
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.
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
15
Civil Appeal No. 3962 of 2016 Page of 25
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
16
Civil Appeal No. 3962 of 2016 Page of 25
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
17
Civil Appeal No. 3962 of 2016 Page of 25
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.
15) 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
18
Civil Appeal No. 3962 of 2016 Page of 25
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
19
Civil Appeal No. 3962 of 2016 Page of 25
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.”
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.
20
Civil Appeal No. 3962 of 2016 Page of 25
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
21
Civil Appeal No. 3962 of 2016 Page of 25
between the two parties would have been understood by Saesha,
as perceived by the appellant. Psychologist term it as ‘The
Parental Alienation Syndrome’ . It has at least two psychological
4
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.
17) 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
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).
22
Civil Appeal No. 3962 of 2016 Page of 25
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.
18) 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
23
Civil Appeal No. 3962 of 2016 Page of 25
playing field is granted to both the parents. That has not
happened in the instant case so far.
19) 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.
20) 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.
21) 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
24
Civil Appeal No. 3962 of 2016 Page of 25
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.
22) It is ordered accordingly.
………………………………………J.
(J. CHELAMESWAR)
………………………………………J.
(A.K. SIKRI)
NEW DELHI;
FEBRUARY 13, 2017.
25
Civil Appeal No. 3962 of 2016 Page of 25