Delhi High Court: In an appeal filed under section 19 of the Family Courts Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890, against the judgment dated 23-12-2019, the Division Bench of Suresh Kumar Kait and Neena Bansal Krishna*, JJ., opined that while the over emphasis of the entire evidence had been to prove the extra-marital affair, there was not an iota of the evidence to show that the respondent-mother in any way, failed to take care of the children’s needs. The Court opined that the children, being the daughters who were in their formative years, their special needs during their puberty and adolescence, could be better understood and cared by the mother. The Court opined that though the appellant-father might be equally capable to taking care of minor daughters, but that could not be the ground to disturb the custody of the children who were in the mother’s custody since January-February 2020. Thus, considering the interest and welfare of the children, the Court granted the permanent custody to the mother and modified a shared-parenting plan.
Background
On 28-11-2004, the parties got married as per Hindu rites and customs and from their wedlock, two daughters were born. However, the matrimonial life of the parties was strained, and the parties ultimately got separated on 27-02-2018. The mother stated that the behaviour of the father was erratic and irresponsible as he had run away to some ashrams and unknown places and abandoned the mother and two daughters for a period of 2.5 years from 24-08-2014 till March 2017. It was stated that during this period, the mother took care of the children and in-laws all by herself. Subsequently, the father returned, so to save their married life, the mother shifted with him, but their relations did not improve.
It was further asserted that on 16-02-2018, their children were kidnapped by the father’s sister and removed from the custody of the mother and on 27-02-2018, the mother was ousted from matrimonial home. Since, 16-02-2018, the mother was not even allowed to talk to children on phone as they were in the father’s custody, and she did not know the whereabouts of the children. Thus, she filed the custody petition seeking permanent custody of both the daughters.
However, the father contended that the custody petition was a counterblast to the divorce petition filed by him on 13-02-2018, against the mother on the grounds of cruelty, adultery and to the criminal complaint filed by him on 28-03-2018, against the mother and her paramour for the offence under Sections 497, 498 and 34 of the Penal Code, 1860. The father further alleged that the conduct of the mother was irresponsible as she invested most of her time and energy in her illicit relationship than with the children.
The Family Court held that the children’s custody should be handed over to the mother. However, since both the children were comfortable in company of both the parties, a shared parenting arrangement was laid down by the Family Court. Thus, both the parents were aggrieved by the impugned judgment dated 23-12-2019 and filed their respective appeals.
Analysis, Law, and Decision
The Court opined that though it had been proved that the mother had an extra-marital affair, that could not be the ground to disentitle the mother from the children’s custody, unless there was something more to prove that her interests had led to impinging on the welfare of the children. The Court opined that while the over emphasis of the entire evidence had been to prove the extra-marital affair, there was not an iota of the evidence to show that the mother in any way, failed to take care of the children’s needs. The mother might not have been the faithful or a good wife, but that was not sufficient to conclude that she was unfit to have the minor’s custody, especially when no evidence had been brought on record to prove that she is any manner, neglected to take care of the children.
The Court opined that both the parties were similarly placed to look after their children and there was not an iota of evidence that the children’s education was hampered or suffered in any manner, while the children were in exclusive custody of the mother or when they were with the father. Thus, it led to irresistible inference that the children’s educational requirements were being taken care of equally by both the parents. The Court relied on Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 and opined that though the father might be equally capable to taking care of minor daughters, but that could not be the ground to disturb the custody of the children who were in the mother’s custody since January-February 2020.
The Court opined that it could not overlook that the children were the minor girls who were in their formative years, and being the daughters who were in their formative years, their special needs during their puberty and adolescence, could be better understood and cared by the mother. The Court opined that though the children had conceded in a conversation with Principal Judge, Family Court that they were also comfortable with their father, but they wanted to stay with the mother. Thus, considering the interest and welfare of the children, the Court granted the permanent custody to the mother.
The Court relied on Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, and opined that to ensure that the child did not lose social, physical and psychological contact with either of the parents, the Court must weigh each and every circumstance very carefully before deciding the manner in which the custody should be shared between the parents. The Court opined that the Family Court had rightly concluded that both the parents must be involved, and accordingly taking into consideration the children’s educational needs and stability in their day-to-day life, the Court modified the shared-parenting plan.
The Court stated that permanent custody of the children should remain with the mother, but the father should have his right of day custody from 09:00 A.M. till 08:00 P.M. on every second Sunday of the month, and in case of unavailability of the children on this day, the same should be accommodated on any other day. Further, whenever there were school holidays of four days and more, the same should be shared equally by both the parents. The Court stated that on special occasions, like birthday or any intervening festival/occasion, the father should have a right to meet the children for minimum three hours during the day and the father should be regularly informed about the educational progress of the children and the report cards should be shared with him. Further, the Court stated that all the decisions regarding the education and future of the children should be taken jointly by both the parties and the father should be entitled to talk to the children through mobile phone or video conferencing at least once in three days, in the evening at about 06:30 P.M., though it might be modified according to the mutual convenience of the parties and the children.
The Court directed both the parties to focus on the welfare of the children and to provide them conducive atmosphere for their all-round growth and development and both the parents should refrain themselves from talking ill about each other or attempt to tutor the children against the other parent.
[VG v. MG, 2024 SCC OnLine Del 678, decided on 30-01-2024]
*Judgment authored by- Justice Neena Bansal Krishna
Advocates who appeared in this case :
For the Appellant: Rashmi Malhotra and Shalinder Saini, Advocates;
For the Respondent: S.D. Singh and Shweta Sinha, Advocates.
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