A. Custody of Minor—Mother’s right to relocate abroad—Welfare principle—Mother seeking permission to travel abroad with minor child for higher education—Held, welfare of the child is paramount but must be balanced with the mother’s fundamental right to personal development under Article 21—A mother cannot be compelled to choose between her child and her career—No material to show harm to child—Permission granted with safeguards. [Paras 34–42, 47] B. Visitation Rights—Protection of father–child relationship—Held, relocation of the child cannot nullify father’s visitation rights—Court directed structured virtual interaction, vacation custody in India, disclosure of residence and schooling, and affidavit of undertaking—Visitation rights pr...
Constitution of India, 1950—Article 226—Writ of Habeas Corpus—Custody of Minor Children—Hindu Minority and Guardianship Act, 1956, Section 6—Natural Guardian—Writ of Habeas Corpus extends to protecting minors from illegal or wrongful detention, including deprivation of custody from their natural guardian—Where minor girls (aged 4 years 9 months and 12 months) were placed with paternal grandparents while the mother, as natural guardian, was available and suitable, custody with grandparents amounted to unlawful detention—High Court, exercising extraordinary jurisdiction, directed immediate transfer of children to mother, emphasizing the paramountcy of child welfare—Interim visitation rights were granted to father and grandparents, pending statutory remedies under the Guardianship Acts&md...
A. Family Law—Child Custody—Paramount consideration of welfare of minor—Governing principles—In custody disputes under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, the welfare and best interests of the child constitute the supreme and overriding consideration; the superior right of either parent is irrelevant—Relevant factors include: the child’s wishes, the emotional and physical environment in which the child will live, and the parent’s ability, means, and suitability to ensure proper upbringing. (Para 10[i]) B. Child Custody—Children as human beings, not property—Limits of parental rights—Custody cannot be awarded solely on the ground that the father loves his children or is not unsuitable—Children are not chattels or toys; paren...
A. Guardian and Wards Act, 1890—Custody of Minors—Welfare of the minor is the paramount consideration in custody disputes—This concept is broad and includes physical, emotional, moral, and psychological well-being, along with the child's bonds of affection. (Para 6) B. Constitution of India, 1950—Articles 21, 39(f), 14, 15—Child Rights and Equality—Right to life under Article 21 encompasses care, dignity, and emotional security of the child—Article 39(f) mandates the State to ensure children's development in a healthy environment—Gender neutrality must be observed in custody matters; decisions must be guided solely by the child’s welfare. (Paras 7, 8, 10, 11) C. Child Custody—Welfare over Parental Rights—The child’s welfare takes precedence over the pare...
Guardians and Wards Act, 1890—Section 25—Custody and welfare of minor—Visitation rights of non-custodial parent—Father residing in India sought virtual visitation with minor child residing with mother in Ireland—Held, welfare of child is of paramount consideration—Right of child to maintain emotional and familial bonds with both parents recognized—Virtual interaction through video calls found to be a reasonable mechanism—Directions issued for video interaction on alternate Sundays to ensure continuity of relationship. (Paras 6 to 11) ...
(A) Constitution of India, 1950—Article 137—Review Jurisdiction—Scope—Custody of Child—Post-Judgment Developments—Mental Health Concerns—New Evidence—The Supreme Court held that review jurisdiction can be invoked in exceptional circumstances where post-decision developments materially affect the justice of the case—In a custody matter, the Court entertained a review petition in light of fresh evidence—a clinical psychologist’s report—indicating that the minor child was at high risk of developing separation anxiety disorder if custody was changed—The Court observed that such developments, affecting the emotional and psychological well-being of the child, constitute new and relevant evidence justifying reconsideration of the earlier custody order—Review peti...
Child Custody—This appeal, the Supreme Court considered whether the Family Court and the Kerala High Court were justified in requiring the appellant-father, a non-custodial parent employed abroad, to file fresh interim applications each time he visited India to seek overnight custody of his minor daughter—The appellant contended that such a piecemeal approach imposed undue procedural burden, uncertainty, and financial strain, and sought a structured interim access schedule—The Court noted that the child was comfortable with the father and emphasized that consistent, meaningful parental contact is vital for a child's welfare—It held that repetitive applications hindered both the father's parental involvement and the child’s emotional stability—Balancing the child’s schooling, the mother&rsq...
Guardians and Wards Act, 1890—Interim Custody of Children—Paramountcy of Welfare—In matters of interim custody, the welfare of the children must remain the paramount consideration—The High Court's decision to grant 15 days’ custody to each parent was found detrimental to the children’s emotional, physical, and mental well-being—The Supreme Court reversed this arrangement, recognizing the instability such frequent transitions could cause—Instead, the father was granted custody on alternate weekends, with supervised interaction for the younger child and access through video calls, ensuring the children’s best interests remained central to the custody arrangement. (Paras 19, 20, 26, 29, 32) Result: The appeal is allowed ...
Hindu Minority and Guardianship Act, 1956—Section 6—This appeal challenges the Family Court's order granting custody of the minor child (appellant No. 2) to the respondent father—The marriage between the appellant and respondent was dissolved by divorce, and the respondent filed for custody under the Hindu Minority and Guardianship Act, 1956—The Family Court, after considering the evidence, granted custody to the father, citing his stable job and the mother’s lack of income—The appellants contested this, arguing that the child’s welfare would be better served with the mother, who had been caring for the child since 2018—The child, now 12, expressed discomfort with moving to the father’s custody—The court, after reviewing the facts and legal precedents, including the welfare o...
Hindu Minority and Guardianship Act, 1956—Section 6(a)—Constitution of India—Article 227—The Punjab and Haryana High Court dismissed a challenge to the Family Court’s denial of interim custody of a 3.5-year-old minor child to the petitioner-mother—The Court emphasized that while Section 6(a) of the Hindu Minority and Guardianship Act, 1956 generally provides that custody of children below five years should ordinarily be with the mother, the paramount consideration remains the welfare of the child—The Court noted that the child had been living with the father for over a year and appeared emotionally attached and well-settled with him—The mother had earlier consented in a joint statement under Section 13-B of the Hindu Marriage Act to give up custody and visitation rights—Additiona...
Guardians and Wards—Custody Petition by Parents—Welfare of Minor Paramount—Prior Consent Decree Not Bar to Fresh Petition—A custody petition under Section 25 of the Guardians and Wards Act, 1890 filed by natural parents is maintainable despite a prior compromise decree between the parties in earlier proceedings—Custody orders, even when passed on consent, are inherently temporary and can be revisited based on subsequent developments affecting the welfare of the child—[Sections 25, 12(i), 17, 20] While natural parents are preferred guardians under Section 19(b), custody may be placed with other relatives temporarily if deemed in the child’s best interest—However, unless unfitness of the parents is established, custody ordinarily reverts to them, particularly when they can provide a stable,...
Welfare of child—Changed circumstances. Guardian and Wards Act, 1890 Section 11—Hindu Marriage Act, 1955—Section 13B—Civil Procedure Code, Order 7 Rule 11—Consent decree about custody of child, while passing divorce decree—Whether attained finality—Revision petition by mother, to impugn order of family court, which dismissed the application filed by mother, alleging, Guardianship petition filed by father is not maintainable— In view of that grounds in changed circumstances, the respondent cannot be debarred to file a petition for custody of his child. (Para 6) Result :- Revision petition dismissed. ...
Custody of Minor Child—Appeal Against Denial of Custody—The appellant challenged the order dated 17.12.2024 passed by the learned Principal Judge, Family Court, Kaithal, which dismissed his petition under Section 25 of the Guardians and Wards Act, 1890, for custody of his minor son—The appellant contended that the respondent (mother) had failed to provide basic necessities and had a criminal background—The Family Court, after interacting with the minor, noted that the child expressed unwillingness to leave his mother's custody and was happy living with her—Emphasizing the paramount welfare of the child, the court found that disturbing the child's environment would not be in his best interest—The court granted the appellant visitation rights once a month at a mutually convenient place—The a...
Constitution of India, Articles 226, 136—Habeas Corpus petition to return custody of child is allowed—SLP by mother, whose petition was dismissed—Child born and brought up at USA—Brought to India, by Father, who obtained divorce—Considering all the facts and surrounding circumstances, it is in Aadith's best interests and welfare to return to the US, where he can complete his schooling and reside with his younger brother, under the Appellant's guardianship—This does not mean that Respondent No. 4 should not be a part of his son's life; rather, it is his duty to become part of the life his son has already established in the US.allow this appeal and set aside the Impugned Judgment of the High Court dated 09.08.2024 with the directions. (Paras 39, 41) Result :- Appeal allowed. ...
Travelling with Child to Abroad, without permission of Court. (A) Contempt of Courts Act, 1971, Sections 2, 12—Violation of Court order, in the Child Custody case—Conviction of main accused—Travelling with child, to abroad, without prior permission of court—Coming to the facts of the case on hand, as discussed above, respondent No.1 herself admitted that despite a direction by this Court vide order dated 09.08.2023 in W.P. No.20129 of 2023 not to leave the Country along with minor child without prior permission of the Court below in GWOP No.38 of 2022, she left the Country on 11.01.2024 along with minor child—The only explanation offered by her is that as per the Exist Permit, she has to take the minor child to USA on or before 31.01.2024—Petition filed seeking permission to travel abroad in Court is...
Hindu Minority And Guardianship Act, 1956—Section 6—Hindu Marriage Act, 1955—Section 26—Code of Criminal Procedure, 1973—Section 482—Custody of his son—Father's petition for—Dismissed by Family Court—With direction that father has right to see minor with previous notice to maternal grandparents and child be allowed to use telephone or video conferencing with his father while living with his grandparents on interval of 15 days—Appeal against—Determination of—High Court was satisfied that time taken of two and half years from him to approach the Court for custody is not fatal to his claim for custody—Father, natural guardian of child stood deprived of custody by respondents without them having been declared guardians, neither Act of 1956 nor Act of 1890—...
Hindu Minority and Guardianship Act, 1956, Section 6(a)—Custody of Minor child—This habeas corpus case concerning the custody of a four-year-old child, the court, after hearing both parties and attempting to explore an amicable solution, emphasizes the paramount consideration of the child's welfare—The couple, who are living separately, has two sons, and the father seeks custody of the younger one—The court underscores that the key consideration is whether the current custody is unlawful or against the child's welfare—The mother has shifted with the child to Lucknow, citing educational and career plans—Serious allegations and conflicts between the parents are evident—Despite the allegations, the court finds the father unable to demonstrate the necessity of a custody transfer or how the chi...
Guardians and Wards Act, 1890—Section 12, Section 17—Child Custody—The court, in a habeas corpus petition concerning a seven-year-old child, finds that custody with the mother is not prima facie illegal—Emphasizing the paramount consideration of the child's welfare, it refrains from intervention where custody legality is not in question—The court highlights the need for detailed inquiry in disputed cases, suggesting recourse to appropriate legal forums for custodial disputes—While dismissing the habeas corpus petition, it allows parties to pursue custodial rights through proper channels, without prejudice to their rights—The rule nisi is discharged, and the child is allowed to return with the mother—This decision underscores the court's cautious approach in custodial matters, priorit...
Guardians and Wards Act, 1890—Section 7—Code Of Criminal Procedure, 1973—Section 200—Child custody—Demands for dowry—The court, in a habeas corpus petition concerning the custody of two minor children, considers allegations of abduction and demands for dowry against the fourth respondent, the children's father—Both parties present conflicting accounts, with the petitioner alleging illegal custody by the respondent and the respondent accusing the petitioner of maintaining an illicit relationship—Given the serious disputes of fact, the court refrains from determining custody in the summary proceedings of a habeas corpus petition—Instead, it directs the petitioner to approach the Family Court for custody, where a full-fledged trial can address the contested issues and determine the ch...
Protection of Women from Domestic Violence Act, 2005—Section 12—Child Custody Dispute Resolved—The Supreme Court refuses to change custody after interactions with the child and appoints Ms. V. Mohana, senior counsel, to assess the situation—The child initially resisted meeting his mother but later agreed to monthly public meetings and phone calls—Despite the importance of both parents' love, the child had been deprived of his mother's affection since the beginning—Ms. V. Mohana's efforts may help the child receive his mother's affection even while residing with the father—The Court suggests mediation for further interaction with a counselor, maintaining the current custody arrangement with visitation rights for the mother—Disposed of. (Para 7,9, & 11) ...
Family Court Act, 1984, Section 19—Hindu Marriage Act, 1955, Sections 24, 25 and 26—Grandparents Form Integral Part For Upbringing Of Children—Chhattisgarh High Court Grants Visitation Right To Meet Grandchildren—Concerns an interlocutory order related to child custody and visitation rights—The Family Court initially allowed the father to meet the child at a meditation center within the court premises—The grandfather later sought visitation rights as well, which was denied—The High Court recognized the importance of grandparents in a child's life and ordered that both the father and the grandfather be allowed to engage with the child via video conference twice a week—In addition, physical meetings can occur on weekends at an independent venue—The court emphasized th...
Guardians and Wards Act, 1890—Section 12, 23—Hindu Minority & Guardianship Act, 1956 Section 6—Interim custody of the minor girl child—Granted custody—appellant challenged the order of the Family Court in Delhi, which granted interim custody of their minor daughter to the respondent-wife—The parties were married, and the child was born during their marriage—The appellant claimed that the respondent-wife's job as a geologist required her to travel extensively, making it difficult for her to provide proper care for the child—The court considered the welfare of the child as paramount, citing Section 6 of the Hindu Minority & Guardianship Act, and concluded that the child's custody should remain with the mother—Visitation rights for the father were also established—Th...
(A) Constitution of India, 1949—Article 226—Writ jurisdiction—Habeas corpus—Custody of male child—The mother is capable to look after, in a better way, the welfare of the child—The primary need of a child is love and care of its mother, where she has been its primary care giving parent—The Court is of the considered opinion that the custody of the child should be given to the mother. (Para 35, 44, 45) (B) Hindu Marriage Act, 1955—Section 26—Parens patriae jurisdiction of court—Held, Section 26 casts an omnibus embargo even on a guardian of a person appointed or declared by the Court from removing the ward from the limits of its jurisdiction—This is because when a dispute arises between the parents of a minor, the court steps in as parents patriae and accordingly ap...
(A) Guardians and Wards Act, 1890—Sections 6, 7, 8, 8(5), 9, 10, 11, 12, 13, 13(1) (i-a), 13 (2) and 17—Constitution of India, 1950—Articles 32 and 226—Custody of children—Writ of Habeas Corpus—Matter relating a claim for custody of child—Principle issue—Whether from facts of case, it can be stated that custody of child is illegal—Consideration of—Both minor children are residents of USA—Son is a natural citizen and daughter is a permanent resident of USA—Both children have been brought up in social and cultural milieu of USA—They are accustomed to lifestyle, language, customs, rules and regulations etc. of that country—Held, that respondent No. 2 at earliest should be directed to go back USA with both minor children and abide by shared parenting plan as o...
Guardian and Wards Act, 1890—Code of Criminal Procedure, 1973—Section 125—Custody of daughter—Maintenance—Wife filed petition for—Husband filed motion—For dissolution of marriage—Sought custody of daughter—Determination of—It is pertinent to note that husband had not sought custody of child—But is merely seeking repatriation of child to Court in U.S.—High Court would have granted visitation right to husband bearing in mind that it is in the best interest of child to have parental care of both parents if not joint then atleast separate—But taking into account the fact that husband has already invoked proceeding in U.S. Court seeking dissolution of marriage and custody of child—High Court refrain from doing so—High Court do not find any merit in ...
(A) Guardians and Wards Act, 1890—Section 7—Evidence Act, 1872—Section 91 and 92—Custody of minor child—Seeking of by father—The wife made a settlement-deed in favour of father that right has been accrued in his favour to retain the custody of minor children—Held, the welfare of minor child is supreme—The children cannot be treated as a commodity in a battle between the father and mother—It is not a case where the provisions of sections 91 & 92 of the Indian Evidence Act can be pressed into motion to hold that there is a contract between the father and mother for the custody of the child, therefore, all other oral evidence is excluded—The both children have expressed that they love mother and wanted to stay with her—The proper and paramount welfare o...
Guardian and Wards Act, 1890—Custody of child—Refused by respondent to handover to petitioner—Petitioner filed writ of Habeas Corpus—Disposed of by an order—It was held that daughter is not in custody and not in company of petitioner for post three years—Daughter continues to be with mother—Validity of—High Court held that parents are under an obligation to provide for an environment which is reasonably conclusive to development of child—It is in the best interest of child to have parental care of both parents if not joint atleast separate—Directions issued—Petition disposed of. (Paras 5, 15 and 17)...
(A) Protection of Women from Domestic Violence Act, 2005—Section 12 and 23(2) and 21—Interim custody of minor child—Magistrate has got the power to pass orders for temporary custody of children u/s 21 of the Act, and an interim or ex parte order also can be passed for custody, under the said Section, on disclosure of a prima facie case, on the basis of an affidavit filed by the aggrieved person—The proceedings under the DV Act has to be understood as supplemental provision, besides the right to adjudicate their issues in a competent Civil Court, Family Court or Criminal Court—No adjudicatory process is involved in passing such interim/ex parte orders by the Magistrate. (Para 7 to 10) [Satish Chander Ahuja v/s Sneha Ahuja, (2020) 2 MMLJ 509 (SC] (B) Family Courts Act, 1984—Section 7...
The Family Courts Act,1984, Section 12 and 6—Family Courts (Procedure) Rules, 1992, Rule 8—Child custody—Report of counsellor—Counsellor submitted report after meetings with the child—Counsellor was not appointed by the State Government—No compliance of Section 6 of H.M. Act,1955—Held, In terms of Section 12 of the Act, no such restriction on the Court—Obligation of the court to consider the best interest of the child—Such a technicality cannot stand in the way—Though Counsellor was not appointed in terms of Section 6, but was appointed by a committee of High Court—In the impugned judgment, it was observed that the Counsellor was well experienced and known for her commitment and sincerity—Report given by counsellor cannot be eschewed from consideration. (Para 29...
Protection Of Women From Domestic Violence Act, Section 2(q), 12, 21— maintenance of Rs. 2,000 -custody minor children during summer vacations given to mother— custody of children under Section 21 of the Act is temporary and the order for custody can only be passed during the pendency of the application under Section 12 of the Act, temporary custody cannot be interpreted to mean permanent custody— The impugned judgment and order to the extent of directions given in respect of custody of children are not legal, proper and correct. They are liable to be quashed and set aside to that extent. ...
provisions of the Guardians and Wards Act, 1890 mother filed a habeas corpus petition in the Kerala High Court to produce her daughter, who had turned 18—The High Court rejected the petition, stating the daughter wasn't in illegal custody—Subsequently, a contempt petition was filed, alleging violations of previous orders regarding the daughter's custody—After a series of court orders, it was established that the daughter, now an adult, expressed her desire to return to Kuwait for her career, so the Court allowed her freedom of choice—The son, still a minor, would spend summers with the mother, subject to certain conditions. ...
Guardians and Wards Act, 1890—Section 9—Child Custody—Transfer of Proceedings—Section 24 CPC—Ordinary Residence of Child—Jurisdiction—Convenience of Child—Petition under Section 24 of the CPC sought transfer of child custody proceedings (G. & WC. No. 229/2016) from Family Court, Bengaluru to Family Court, Belagavi—The petitioner (father) contended that the child resides with him at Belagavi and the Court at Belagavi alone has jurisdiction under Section 9 of the Guardian and Wards Act, 1890, as it is the child’s ordinary place of residence—The respondent (mother) disputed this, claiming Bengaluru as the child’s ordinary residence—Relying on Ruchi Majoo v. Sanjeev Majoo, the Court held that ‘ordinary residence’ is determined by the child’s pr...
Hindu Adoptions and Maintenance Act, 1956—Section 16—Child custody—Habeas Corpus and Child Custody: In a matter involving the custody of a child, the mother sought relief through a writ of habeas corpus, while the father claimed to have legally given the child in adoption—The Court held that the validity of the adoption deed cannot be challenged within the scope of habeas corpus proceedings—The Court emphasized the limited nature of habeas corpus jurisdiction, not extending to the determination of complex legal issues such as adoption validity—However, considering the paramount consideration of the welfare of the child, the Court entrusted temporary custody to the natural mother until a thorough adjudication on the validity of the adoption deed by the Civil Court—This approach ensures due process ...
Hindu Minority And Guardianship Act, 1956—Section 13—Child custody—Guardianship and custody of an 11-year-old child named Deepak alias Raju, the court prioritizes the child's welfare—Despite the divorce of the parents, the appellant mother is granted custody and guardianship of the minor, with assurances of proper education and care in accordance with the family's middle-class status—The father is granted visitation rights during school vacations and up to one month annually—Both parents are directed to facilitate these arrangements, with provisions for court intervention if disputes arise—Additionally, the court resolves the alimony issue, agreeing on a settlement amount of Rs. 8000 payable in installments, with provisions for enforcement in case of default. ...