Preferences and Inclinations of the Child are of Vital Importance for Determining the Issue of Custody of the Minor Child: Supreme Court

The Supreme Court, in a 2:1 majority judgment, related to transnational custody of the minor child, granted the custody of the minor child to the father, as the 11-year-old boy uttered his wish to live with his father.

The Court relied upon Section 17(3) of the Guardian and Wards Act, 1890 while dealing with the international family law case. Section 17(3) states that, if a minor is old enough to form an intelligent preference, then the Court may consider the preference of that minor.

“As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will”, the Court observed.

The majority judgment by Justices UU Lalit and Indu Malhotra, noted that the 11-year-old had a “strong and deep bond with his father.”

The Court has hence ordered the father to get a mirror order reflecting its judgment from a court in Nairobi, Kenya (link)

Brief Facts of the Case

  • Smriti got married to Perry on 29.07.2007 at New Delhi. After marriage, Smriti shifted to Nairobi, Kenya and settled in her matrimonial home and had a child in 2009. They have been living separately since 2012. The mother, who was a practising lawyer, is an Indian citizen, whereas the father holds dual citizenship of Kenya and the United Kingdom, with businesses in both countries.
  • The litigation began with on   26.05.2012, when  Smriti filed a   Suit for   Permanent Injunction bearing C.S. (O.S.) 1604 of 2012 against Perry and his parents, before the Delhi High Court from removing the child from her custody. During the pendency of this suit, numerous orders were passed regarding visitation rights to the father.
  • Subsequently, the father filed a petition under Section 17(3), of the Guardians and Wards Act, 1860 before the Family Court at Saket in November 2012.
  • The custody of the father over the child was upheld by the family court. On appeal, the Delhi High Court affirmed the order the family court. Aggrieved from the order of the High Court the mother approached the Supreme Court in appeal.

Observations made by the Court

The Supreme Court reaffirmed the principle that while exercising parens patriae jurisdiction, the sole and paramount consideration would be to subserve the interest and welfare of the child i.e. preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child.

The Court ruled that in the present case, the issue of custody of the minor depended on the “overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3).

“We found Aditya to be self-confident and articulate for his age, who was comfortable and at ease in interacting with us. He had great clarity about his interest to pursue education overseas and was interested to travel to the UK and other places. He revealed deep love and affection for his mother and Nani. At the same time, we observed that he had a strong bond and attachment to his father and paternal grandparents” observed the Court.

Observing that according to Section 17(3) preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child, the Supreme Court arrived at the conclusion that it would be in the best interest of the child to transfer custody to his father as if the preferences were not given due regard, it could have an adverse psychological impact on the child.

“In view of the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have arrived at the conclusion that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child”, 

the Court observed.

Dissent by Justice Hemant Gupta

Dissenting from the majority verdict, Justice Hemant Gupta stated that the custody of the child shall be granted to the mother as the “question of where does the welfare of the child lie thus narrows down to the mother who has stopped practising law to nurture the child as against the father who travels quite substantially every month”. His judgment further states that

“In the absence of the father, the child will be in the custody of nannies, maids and servants. The grandparents would not be able to take care of the growing needs of a young child. All things being equal, the presence of grandparents can tilt in balance but where a mother who is available 24/7 for guiding, caring and nurturing a growing child as against a father who needs to travel outside his normal place of stay frequently, I find that the mother is more suitable in whose hands the welfare of the child is secured.”

As the father is facing a charge of manslaughter on 48 counts, however, he was acquitted by the first Court, the High Court has set aside the order of acquittal and ordered re-trial. In light of this matter, Justice Gupta observed that,

“Putting the child to the trauma of trial in Kenya would not be in his best interests and will have adverse psychological impact on him.”

A part from the mirror order the Court passed the following directions:

(i) After the mirror order is filed before this Court, Perry (father) shall deposit a sum of Rs 1 Crore in the Registry, which shall be kept in an account for a period of two years to ensure compliance with the directions contained in this judgment. The amount shall be returned with interest accrued after the directions of the Court are complied with.

(ii) Perry will apply and obtain a fresh Kenyan passport for Aditya (child), Smriti (mother) will provide full co­operation, and not cause any obstruction in this behalf;

(iii) Within a week of the mirror order being filed before this Court, Smriti shall provide the Birth Certificate and the Transfer Certificate from Delhi Public School, to enable Perry to secure the admission of Aditya to a School in Kenya;

(iv) Smriti will be at liberty to engage with Aditya on a suitable video­conferencing platform for one hour over the weekends; further, Aditya is at liberty to speak to his mother as and when he desires to do so;

(v) Smriti would be provided with access and visitation rights for 50% once in a year during the annual vacations of Aditya, either in New Delhi or Kenya, wherever she likes, after due intimation to Perry;

(vi)Perry will bear the cost of one trip in a year for a period of one week to Smriti and her mother to visit Aditya in Kenya during his vacations. The costs will cover the airfare and expenses to a stay in Kenya;

(vii) Smriti will not be entitled to take Aditya out of Nairobi, Kenya without the consent of Perry.

Case Name: Smriti Madan Kansagra v Perry Kansagra

Case No.: Civil Appeal No. 3559/2020

 Coram: Justices UU Lalit, Indu Malhotra and Hemant Gupta

Also Read: Divorce by Mutual Consent: Bombay High Court Allowed a Plea for Waiving the Cooling-off Period

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