Full Judgment Text
2024 INSC 397
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2024
[Arising out of SLP (C) No(s). 28466 of 2023]
COL. RAMNEESH PAL SINGH …APPELLANT(S)
VERSUS
SUGANDHI AGGARWAL …RESPONDENT(S)
J U D G M E N T
SATISH CHANDRA SHARMA, J.
Introduction
1. Leave granted.
2. The present appeal preferred by the Appellant seeks to
assail the correctness of an order dated 11.10.2023 passed by a
Division Bench of the High Court of Delhi at New Delhi (the
“ High Court ”) in M.A.T. APP (F.C.) 132 of 2020 (the
“ Impugned Order ”). Vide the Impugned Order the High Court
Signature Not Verified
Digitally signed by
Neetu Khajuria partly allowed the appeal preferred by the Respondent against an
Date: 2024.05.08
17:06:44 IST
Reason:
SLP (C) No. 28466 of 2023 Page 1 of 27
order dated 22.08.2020 passed by the Learned Family Court,
West, Tis Hazari Court (the “ Family Court ”) in GP No. 45/17
(Old GP No. 75 of 2015) whereby the Family Court granted
permanent custody of minor children to the Appellant and
provided visitation rights to the Respondent (the “ Underlying
Order ”). Pertinently, vide the Impugned Order, the High Court
set aside the Underlying Order; and accordingly granted the
parties shared custody of the Minor Children ( defined below) .
Factual Background
3. The facts and proceedings germane to the contextual
understanding of the present lis , are as follows:
3.1. The marriage between (i) the Appellant i.e., now serving
as a Colonel in the Indian Armed Forces presently posted
at Jalandhar, Punjab; and (ii) the Respondent i.e., now
employed as a teacher in Delhi Public School, Gurugram -
was solemnized on 22.12.2002 at Delhi, in accordance
with Hindu/Sikh rites and rituals. Two minor children were
born out of the wedlock i.e., (i) a 15 (fifteen) year old
daughter (hereinafter “ SSU ”); and (ii) a 12 (twelve) year
old son (hereinafter " SSH ”) (hereinafter, SSU and SSH
shall collectively be referred to as the “ Minor Children ”).
SLP (C) No. 28466 of 2023 Page 2 of 27
3.2. In December 2013, the Appellant having been promoted to
the rank of Colonel in the Indian Armed Forces, was
posted to serve in the Jammu and Kashmir. Accordingly, it
was decided that the Respondent together with the Minor
Children would reside in New Delhi. The relationship
between the Parties deteriorated significantly; and
thereafter took a turn for the worst on 08.08.2015, forcing
the Respondent to leave the matrimonial home for 1 (one)
night. Upon returning the next day i.e., 09.08.2015, the
Respondent found the residence locked, and the Appellant
along with the Minor Children unavailable at aforesaid
residence.
3.3. The Respondent was constrained to file (i) a missing
children’s report on 19.08.2015; and thereafter (ii) an
application under Section 12 of the Protection of Women
from Domestic Violence Act, 2005 (the “ DV Act ”) on
17.08.2015. Subsequently, the Respondent learnt that the
Minor Children along with the Appellant were residing in
Gulmarg, Jammu and Kashmir and were scheduled to
move to Bikaner, Rajasthan in furtherance of the nature of
the Appellant’s service. Aggrieved, the Respondent filed a
petition under Section 7, 9 and 25 of the Guardian and
Wards Act, 1890 (the “ Act ”) before the Family Court
seeking custody of the Minor Children on 21.11.2015. On
SLP (C) No. 28466 of 2023 Page 3 of 27
the other hand, the Appellant filed a similar petition
seeking custody of the Minor Children before the Learned
Principal Jude, Family Court, Bikaner, Rajasthan.
3.4. This Court vide an order dated 29.03.2017, transferred the
custody petition filed by the Appellant before the Learned
Principal Jude, Family Court, Bikaner, Rajasthan to the
Family Court in Delhi. Thereafter, vide an order dated
16.10.2017, the Family Court granted interim custody of
the Minor Children to the Respondent (the “ Interim
Custody Order ”). Aggrieved, the Respondent preferred
an Appeal before the High Court. Vide an order dated
06.12.2017, the High Court initially stayed the operation
of the Interim Custody Order; thereafter vide an order
dated 19.04.2018 granted the Respondent custody of the
Minor Children on alternative weekends; and finally vide
an order dated 01.10.2019, dismissed the appeal and
vacated the interim order(s) observing inter alia that the
appeal was not maintainable.
3.5. Aggrieved, the Appellant preferred a writ petition under
Article 227 of the Constitution of India before the High
Court challenging the correctness of the Interim Custody
Order (the “ Writ Petition ”). Vide an order dated
29.04.2020, the High Court formulated an interim custody
SLP (C) No. 28466 of 2023 Page 4 of 27
arrangement between the parties after interacting with the
Minor Children. Pertinently, although an SLP was
preferred against the aforesaid order, this Court did not
interfere with the order passed by the High Court; and only
directed the Family Court to decide the custody petition
within a period of 1 (one) month.
3.6. In the aforesaid context, the custody petition came to be
disposed of by the Family Court vide the Underlying Order
as under:
“16.1 In view of the aforesaid discussion, it is
directed that the permanent custody of minor
children SSU and SSH shall remain with the
respondent. However, the petitioner shall be
entitled to have interaction with the minor children
daily through audio-video call for half an hour,
between 7:00 PM to 8:00 PM. The respondent shall
facilitate the said call. She shall also be entitled to
visit the minor children and take them out with her
from 10:00 AM to 5:00 PM, on every second and
fourth Sunday, at the station, where the minor
children are staying, subject to their
school/educational commitments. She can pick up
the children from their residence at 10:00 AM and
drop them back at 5:00 PM. If it is not possible to
have visitation on any such day, it shall be
compensated on the next Sunday i.e. third or
fifth/first Sunday. Further, during the summer
vacations and the winter vacations in the school(s)
of the minor children, the petitioner shall be entitled
to have the custody of the minor children for ten
SLP (C) No. 28466 of 2023 Page 5 of 27
days and five days respectively. Such days can be
mutually decided by the parties. Accordingly, the
petition filed by the petitioner for seeking custody of
the minor children SSU and SSH is dismissed,
subject to contact/visitation/custody rights of the
petitioner as aforesaid.”
3.7. Aggrieved by the Underlying Order, the Respondent
preferred an appeal under Section 19 of Family Courts Act,
1984 before the High Court. During the pendency of the
appeal, certain interim order(s) came to be passed from
time to time, subsequently, vide the Impugned Order, the
High Court granted the parties shared custody of the Minor
Children as under:
“34. In view of the aforesaid discussion, the
impugned order dated 22.08.2020 is set aside. We,
accordingly, partly allow the appeal and direct that
the appellant and the respondent will share custody
of the minor children ‘SSU’ and ‘SSH’ in the
following manner:
(i) Till the start of the next academic session the
appellant would be entitled to have overnight
custody of the minor children on the second and
fourth weekend of every month. For the said
purpose, the appellant shall travel to the
respondent’s station of posting, on her own expenses
on the second Friday of every month. She shall
either make her own arrangements for
accommodation or request the respondent to
arrange for her accommodation at a guest house in
the Cantonment Area. The respondent will hand
SLP (C) No. 28466 of 2023 Page 6 of 27
over the custody of the children to the appellant on
the evening of Friday, after she has arrived. The
children shall remain with the appellant till Sunday
evening and thereafter, the respondent shall pick
them up before the appellant leaves for Delhi. On
the fourth Friday of every month, the respondent
shall either bring the children to Delhi or send them
by flight, while placing them in the care of the
airline staff. In such a situation, the appellant will
pick the children up from the airport. The children
shall be returned by flight available on Sunday
evening. The expenses for the to and fro journey of
the children on such fourth weekend of each month
shall be borne by the respondent.
(ii) Prior to the beginning of the next academic
session, the appellant shall ensure that admission of
the minor children is secured at the school where
she is currently teaching, i.e., Delhi Public School,
Gurugram, Haryana. The respondent shall fully
cooperate in the admission process. Thereafter, the
respondent shall hand over the custody of the minor
children to the appellant. The children will stay
with the appellant at her residence in Delhi. In such
a situation, the respondent would be entitled to have
overnight custody of the minor children on the
second and fourth weekend of every month. For the
said purpose, the respondent shall travel to Delhi,
on his own expenses on every second Friday. He
shall make his own arrangements for
accommodation. The appellant will hand over the
custody of the children to the respondent on the
evening of Friday, after he has arrived. The
children shall remain with the respondent till
Sunday evening and thereafter, the appellant shall
pick them up before the respondent leaves. On the
SLP (C) No. 28466 of 2023 Page 7 of 27
fourth Friday of every month, the appellant shall
either bring the children to the respondent’s station
of posting or send them by flight, while placing them
in the care of the airline staff. In such a situation,
the respondent will pick the children up from the
airport. The children shall be returned by flight
available on Sunday evening. The expenses for the
to and fro journey of the children on such fourth
weekend of each month shall be borne by the
appellant.
(iii) In case the respondent is posted to a station in
the NCT of Delhi, the appellant and the respondent
will have custody of the minor children for two
weeks each including the weekends, every month.
The children shall stay with the appellant for the
first two weeks of every month and with the
respondent for the next two weeks of every month.
At the end of the second week of every month, i.e.,
on Sunday evening, the appellant shall drop the
children at the respondent’s accommodation. At the
end of every fourth week, i.e., on Sunday evening,
the respondent shall drop the children back at the
appellant’s residence.
(iv) During summer vacations and winter vacations,
the appellant and the respondent shall have custody
of the minor children for an equal number of days.
Such days can be mutually agreed upon by the
parties. It is clarified that in case the children are
required to travel as a result of the said
arrangement during vacations, the expenses for
their travel shall be borne by the parent who they
are visiting. Therefore, if the children are travelling
from the respondent’s station of posting to Delhi, the
expenses shall be borne by the appellant. If the
children are travelling from Delhi to the
SLP (C) No. 28466 of 2023 Page 8 of 27
respondent’s station of posting, the expenses shall
be borne by the respondent.”
3.8. Aggrieved by the Impugned Order, the Appellant preferred
SLP (C) No. 28466 of 2023 (the “ SLP ”) before this Court
i.e., now converted to this instant appeal. Vide an order
dated 05.01.2024, this Court stayed the operation of the
Impugned Order.
3.9. It would also be relevant to clarify that, up until this stage,
the custody of the Minor Children has essentially remained
with the Appellant despite (i) various interim order(s)
passed by (a) the High Court; and (b) the Family Court in
favour of the Respondent; and (ii) the initiation of
contempt proceedings before the High Court.
Contentions of the Parties
4. Shri Vivek Chib, Learned Senior Counsel appearing on
behalf of the Appellant, urged the following:
4.1. That the Minor Children have been residing with him
happily since ‘15 i.e., for period extending to almost to 9
(nine) years and it is the desire of the Minor Children to
continue to reside with the Appellant. In this regard, it was
submitted that the aforesaid preference has been
communicated by the Minor Children to various court(s)
from time -to-time including inter alia the High Court.
SLP (C) No. 28466 of 2023 Page 9 of 27
4.2. That the High Court proceeded on an erroneous
assumption that the prolonged period of separation
between the Respondent and the Minor Children has sub-
consciously influenced the Minor Children against the
Respondent.
4.3. That the Underlying Order passed by the Family Court was
a detailed and well-reasoned order which has been passed
after a thorough analysis of the copious evidence and
material(s) on record in favour of the Appellant.
4.4. Lastly, Mr. Chib relied on the following decision(s) of this
Court to buttress the aforesaid submission(s):
(a) Jitender Arora v. Sukriti Arora , (2017) 3 SCC 726 ;
(b) Nil Ratan Kundu v. Abhijit Kundu , (2008) 9 SCC
413 ;
(c) Mausami Moitra Ganguli v. Jayant Ganguli ,
(2008) 7 SCC 673 ;
(d) Vishnu v. Jaya , (2010) 6 SCC 733 ; and
(e) Lahari Sakhamuri v. Sobhan Kodali , (2019) 7 SCC
311 .
5. Ms. Vandana Sehgal, AOR appearing on behalf of the
Respondent brought forth the following key contentions:
5.1. That the Appellant has forcefully retained the custody of
the Minor Children for a prolonged period of 8 (eight)
SLP (C) No. 28466 of 2023 Page 10 of 27
years in blatant disregard of various order(s) passed by the
High Court and / or the Family Court directing interim
shared custody of the Minor Children at different points of
time.
5.2. That the Underlying Order granted the Appellant custody
of the Minor Children proceeding on an erroneous and
irrelevant consideration i.e., the alleged act of adultery.
5.3. That the Appellant has deliberately disenfranchised the
Minor Children from their mother i.e., the Respondent
herein, and accordingly it was vehemently contended that
the present lis is a classic case of ‘ parental alienation
syndrome ’ (“ PAS ”).
5.4. That the Minor Children are at an impressionable age and
require the presence of their mother i.e., the Respondent.
5.5. That the Court whilst exercising its parens patriae
jurisdiction must not limit itself to the wish and / or desire
of the Minor Children but must ensure the welfare of the
Minor Children.
5.6. That the Respondent is employed as a teacher in a reputed
school in Gurugram; and would be able to provide the
Minor Children with a stable and conducive environment
as opposed to Appellant i.e., a serving officer in the Indian
SLP (C) No. 28466 of 2023 Page 11 of 27
Armed Forces, who is due to be transferred to a field
station as opposed to a family station.
5.7. In regard to the aforesaid, Ms. Sehgal relied on the
following:
(a) Vivek Singh v. Romani Singh , (2017) 3 SCC 231 ;
(b) Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC
42 ;
(c) Nil Ratan Kundu (Supra) ; and
(d) Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1
SCC 840 .
Analysis and Findings
6. We have heard the learned counsels appearing on behalf of
the respective parties at length and we have carefully considered
and deliberated upon the submission(s) made on behalf of the
parties.
7. In the instant appeal we have been called upon to decide
the guardianship of 2 (two) minor children i.e., (i) SSU; and (ii)
SSH, till they attain the age of majority.
8. It is well settled that the principal consideration of the
Court whilst deciding an application for guardianship under the
SLP (C) No. 28466 of 2023 Page 12 of 27
Act in exercise of its parens patriae jurisdiction would be the
1
‘welfare’ of the minor children.
9. The aforesaid principle is also enshrined in Section 17 of
the Act, the same is reproduced as under:
“ 17. Matters to be considered by the Court in
appointing guardian. – (1) In appointing or
declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided
by what, consistently with the law to which the
minor is subject, appears in the circumstances to be
for the welfare of the minor.
(2) In considering what will be for the welfare of the
minor, the Court shall have regard to the age, sex
and religion of the minor, the character and
capacity of the proposed guardian and his nearness
of kin to the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
2 *
(5) The Court shall not appoint or declare any
person to be a guardian against his will.”
10. In this context, it would be appropriate to refer to a
decision of this Court in Nil Ratan Kundu (Supra) wherein
parameters of ‘welfare’ and principles to be considered by courts
1
V. Ravi Chandran (Dr.) (2) v. Union of India , (2010) 1 SCC 174
2
Sub-section (4) omitted by Act 3 of 1951, s. 3 and the Schedule.
SLP (C) No. 28466 of 2023 Page 13 of 27
whilst deciding questions involving the custody of minor
children came to be enunciated. The relevant paragraph(s) are
reproduced as under:
“52. In our judgment, the law relating to custody of
a child is fairly well settled and it is this: in deciding
a difficult and complex question as to the custody of
a minor, a court of law should keep in mind the
relevant statutes and the rights flowing therefrom.
But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem
and is required to be solved with human touch. A
court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting proper
guardian of a minor, the paramount consideration
should be the welfare and wellbeing of the child. In
selecting a guardian, the court is exercising parens
patriae jurisdiction and is expected, nay bound, to
give due weight to a child's ordinary comfort,
contentment, health, education, intellectual
development and favourable surroundings. But over
and above physical comforts, moral and ethical
values cannot beignored. They are equally, or we
may say, even more important, essential and
indispensable considerations. If the minor is old
enough to form an intelligent preference or
judgment, the court must consider such preference
as well, though the final decision should rest with
the court as to what is conducive to the welfare of
the minor.
xxx
SLP (C) No. 28466 of 2023 Page 14 of 27
55. We are unable to appreciate the approach of the
courts below. This Court in a catena of decisions
has held that the controlling consideration
governing the custody of children is the welfare of
children and not the right of their parents.
56. In Rosy Jacob [(1973) 1 SCC 840] this Court
stated:
(SCC p. 854, para 15)
“15. … The contention that if the husband
[father] is not unfit to be the guardian of his
minor children, then, the question of their
welfare does not at all arise is to state the
proposition a bit too broadly and may at times
be somewhat misleading.”
It was also observed that the father's fitness has to
be considered, determined and weighed
predominantly in terms of the welfare of his minor
children in the context of all the elevant
circumstances. The father's fitness cannot override
considerations of the welfare of the minor children.
57. In our opinion, in such cases, it is not the
“negative test” that the father is not “unfit” or
disqualified to have custody of his son/daughter that
is relevant, but the “positive test” that such custody
would be in the welfare of the minor which is
material and it is on that basis that the court should
exercise the power to grant or refuse custody of a
minor in favour of the father, the mother or any
other guardian.”
SLP (C) No. 28466 of 2023 Page 15 of 27
11. Furthermore, this Court in Gaurav Nagpal (Supra)
undertook a comprehensive and comparative analysis of laws
relating to custody in the American, English, and Indian
jurisdiction(s) and observed that the Court must construe the term
‘welfare’ in its widest sense i.e., the consideration by the Court
would not only extend to moral and ethical welfare but also
include the physical well-being of the minor children.
12. Accordingly, in view of the aforesaid, not only must we
proceed to decide the present lis on the basis of a holistic and all-
encompassing approach including inter alia (i) the socio-
economic and educational opportunities which may be made
available to the Minor Children; (ii) healthcare and overall-
wellbeing of the children; (iii) the ability to provide physical
surroundings conducive to growing adolescents but also take into
consideration the preference of the Minor Children as mandated
3
under Section 17(3) of the Act. Furthermore, we are equally
conscious that the stability of surrounding(s) of the Minor
4
Children is also a consideration to be weighed appropriately.
13. In the present factual matrix, the minor children i.e., SSU;
and SSH have interacted with the Court(s) to express their
preference of guardian on a plethora of occasions. Accordingly,
3
Lahari Sakhamuri (Supra) ; and Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari ,
(2019) 7 SCC 42.
4
Shazia Aman Khan and Ors. vs. The State of Orissa and Ors., 2024 INSC 163.
SLP (C) No. 28466 of 2023 Page 16 of 27
we consider it appropriate to briefly delve into the observations
of the Court(s) vis-à-vis the preference expressed by the Minor
Children:
13.1. The Learned Single Judge of the High Court engaged with
the Minor Children on 24.02.2020 i.e., SSU was
approximately 11.5 (eleven and a half) years old; and SHH
was approximately 8 (eight) years old. The Learned Single
Judge in his order dated 29.04.2020 recorded that he found
the Minor Children to be confident and well-groomed.
Furthermore, it has been categorically stated no overt
preference was indicated by the Minor Children in respect
to one parent over the other.
13.2. Thereafter, the Family Court engaged in a personal
interaction with the Minor Children on 11.08.2020 i.e.,
when SSU was approximately 12 (twelve) years old; and
SSH was approximately 8.5 (eight and a half) years old.
Pertinently, in Underlying Order, the Family Court
observed that the Minor Children expressed their
preference to reside with the Appellant. Additionally, it
was observed that the Minor Children were doing well in
the pursuit of their education and co-curricular activities
whilst residing with the Appellant; and that the Minor
Children were well-settled and progressing fine.
SLP (C) No. 28466 of 2023 Page 17 of 27
13.3. Subsequently, the Division Bench of the High Court
interacted with the Minor Children on two occasions i.e.,
(i) 23.08.2021; and (ii) 17.08.2022. Pertinently, the
Division Bench in an order dated 23.08.2021 observed that
the children were intelligent and reasonably grown up. On
the other hand, the Division Bench in the Impugned Order
observed that the Minor Children expressed their clear
desire to reside with the Appellant.
13.4. In the Supreme Court, we considered it necessary to
interact with the Minor Children ourselves. Accordingly,
vide an order dated 19.03.2024, we directed the Appellant
to produce the Minor Children in Court so as to enable us
to interact with them. On 05.04.2024, we interacted with
both SSU; and SSH in chambers. We found the Minor
Children to be intelligent, confident, cognisant of the pros
and cons of their decisions and most importantly content /
happy. During our interactions with the Minor Children,
despite probing the issue of guardianship on more than one
occasion, the Minor Children categorically stated that they
were happy and wished to reside with their father only i.e.,
the Appellant.
14. The natural and consequential deduction from the
aforesaid interaction(s) between the Minor Children and various
SLP (C) No. 28466 of 2023 Page 18 of 27
Court over a period spanning over 4 (four) years, is the
unwavering and strong desire of the children to continue to reside
with the Appellant. The aforesaid desire / preference although in
itself cannot be determinative of custody of the children, but it
must be given due consideration on account of it being a factor
of utmost importance.
15. Having settled the preference of the Minor Children, we
turn towards, the next leg of the analysis to be undertaken by this
Court in questions involving custody of children i.e.,
considerations of welfare of the children.
16. In the instant appeal, certain contentions were raised by
Ms. Sehgal in relation to the nature of employment of the
Appellant posing a challenge in the upbringing and welfare of the
Minor Children. We find ourselves unable to subscribe to the
aforesaid view, as we find that the Indian Armed Forces provides
a robust support system to the kin of its officer(s) so as to ensure
minimal disruption in the lives of the civilian member(s) of an
officer’s family. This support system includes residential
accommodation, a network of army schools, hospitals and
healthcare facilities. Moreover, various extra-curricular activities
i.e., sport(s) facilities and recreational clubs; and other social and
cultural functions are made available for the benefit of the kin of
officers of the Indian Armed Forces – the aforesaid support
SLP (C) No. 28466 of 2023 Page 19 of 27
system undoubtedly, aids in the mental stimulation, growth and
overall development of personality of a child.
17. At this juncture it would also be relevant to deal with the
main thrust of the argument put forth by Ms. Sehgal in relation
to the preference indicated by the Minor Children i.e., it was
contended that the present case is a classic case of PAS wherein
the Minor Children have been influenced against the Respondent;
and accordingly the preference indicated by the Minor Children
ought not to be considered representative of the true emotions of
the Minor Children. In view of the aforesaid, the decision of this
Court in Vivek Singh (Supra) was heavily relied upon to
substantiate her submission. The relevant paragraph is
reproduced as under:
“18. 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. Towards this end,
it also becomes necessary for parents to exhibit
SLP (C) No. 28466 of 2023 Page 20 of 27
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
viewpoint 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 between the two parties would have been
understood by Saesha, as perceived by the
appellant. Psychologists term it as “The Parental
Alienation Syndrome” [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].
It has at least two psychological destructive effects:
SLP (C) No. 28466 of 2023 Page 21 of 27
(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.”
18. The aforesaid submission found favour with the High
Court. Pertinently, the High Court in the Impugned Order
observed that the possibility of the Minor Children having been
influenced against the Respondent, could not be ruled out.
19. We find ourselves unable to agree with the High Court - in
our considered opinion, the High Court has failed to appreciate
the intricacies and complexities of the relationship between the
parties and accordingly, proceeded to entertain allegations of PAS
on an unsubstantiated basis.
20. PAS is a thoroughly convoluted and intricate phenomenon
that requires serious consideration and deliberation. In our
considered opinion, recognising and appreciating the
SLP (C) No. 28466 of 2023 Page 22 of 27
repercussions of PAS certainly shed light on the realities of long-
drawn and bitter custody and divorce litigation(s) on a certain
identified sect of families, however, it is equally important for us
to remember that there can no straitjacket formula to invoke the
principle laid down by this Court in Vivek Singh (Supra) .
21. The role of a Court vis-à-vis allegation(s) of PAS came to
be considered recently by an English Court i.e., the High Court
of Justice Family Division in Re C ('parental alienation';
instruction of expert) , [2023] EWHC 345 (Fam) . Pertinently, the
Court reflected on the changing narrative in relation to PAS -
placed before the Court therein, by an expert body i.e., the
Association of Clinical Psychologists - UK (“ ACP ”) and
thereafter observed as under:
“103. Before leaving this part of the appeal, one
particular paragraph in the ACP skeleton argument
deserves to be widely understood and, I would
strongly urge, accepted:
'Much like an allegation of domestic
abuse; the decision about whether or not
a parent has alienated a child is a
question of fact for the Court to resolve
and not a diagnosis that can or should
be offered by a psychologist. For these
purposes, the ACP-UK wishes to
emphasise that “parental alienation” is
not a syndrome capable of being
diagnosed, but a process of
manipulation of children perpetrated by
SLP (C) No. 28466 of 2023 Page 23 of 27
one parent against the other through,
what are termed as, “alienating
behaviours”. It is, fundamentally, a
question of fact.'
It is not the purpose of this judgment to go further
into the topic of alienation. Most Family judges
have, for some time, regarded the label of 'parental
alienation', and the suggestion that there may be a
diagnosable syndrome of that name, as being
unhelpful. What is important, as with domestic
abuse, is the particular behaviour that is found to
have taken place within the individual family
before the court, and the impact that that
behaviour may have had on the relationship of a
child with either or both of his/her parents. In this
regard, the identification of 'alienating behaviour'
should be the court's focus, rather than any quest
to determine whether the label 'parental
alienation' can be applied. ”
22. We find ourselves in agreement with the aforesaid
position. Courts ought not to prematurely and without
identification of individual instances of ‘alienating behaviour’,
label any parent as propagator and / or potential promoter of such
behaviour. The aforesaid label has far-reaching implications
which must not be imputed or attributed to an individual parent
routinely.
23. Accordingly, it is our considered opinion that Courts must
endeavour to identify individual instances of ‘alienating
behaviour’ in order to invoke the principle of parental alienation
SLP (C) No. 28466 of 2023 Page 24 of 27
so as to overcome the preference indicated by the minor
5
children.
24. In the instant appeal, the Family Court has categorically
recorded that there was nothing on record to suggest that the
interests and welfare of the Minor Children were in any manner
affected during their stay with the Appellant. Additionally, the
Learned Single Judge of the High Court interacted with the
Minor Children on 24.02.2020 i.e., a period of close to 4.5 (four
and a half) years after the alleged incident on 08.08.2015, and
categorically recorded that the Minor Children expressed no
overt preference amongst their parents – the aforesaid
observation by the Learned Single Judge, is crucial as it
underscores that while the relationship between the parties may
have been strained; the Minor Children could not be said to have
exhibited any indication of ‘parental alienation’ i.e., there was
no overt preference expressed by the Minor Children between the
parents and thus, the foundation for any claim of parental
alienation was clearly absent. The aforesaid position is also
supported by materials on record to suggest that (i) the Minor
Children are cognisant and aware of the blame game being
played inter se the parties; and (ii) that the Minor Children did
not foster unbridled and prejudiced emotions towards the
Respondent. Accordingly, we find that the Appellant could not
5
Recognised by this Court in Vivek Singh (Supra) .
SLP (C) No. 28466 of 2023 Page 25 of 27
have been said to have engaged or propagated ‘alienating
behaviour’ as alleged by the Respondent.
25. Therefore, in our considered opinion, the High Court
failed to appreciate the aforesaid nuance and proceeded on an
unsubstantiated assumption i.e., that allegations of parental
alienation could not be ruled out, despite the stark absence of any
instances of 'alienating behaviour' having been identified by any
Court. In view of the aforesaid discussion, we find that the
reliance placed on Vivek Singh (Supra) by the Respondent is
misdirected and the High Court erred in law and in fact whilst
relying on the said decision.
26. Accordingly, on an overall consideration, we are
convinced that the High Court was neither correct nor justified in
interfering with the well-considered and reasoned order passed
by the Family Court granting custody of the Minor Children to
the Appellant for the reasons recorded above.
Directions & Conclusions
27. In view of the aforesaid discussion, we consider it just and
appropriate that the custody of the Minor Children is retained by
the Appellant, subject to the visitation rights of the Respondent
as granted by the Family Court vide the Underlying Order i.e.,
the final order dated 22.08.2020.
SLP (C) No. 28466 of 2023 Page 26 of 27
28. The appeal is allowed in the aforesaid terms; the Impugned
Order is set aside. Pending applications, if any, stand disposed of.
No order as to cost(s).
……………………………………J.
[VIKRAM NATH]
……………………………………J.
[SATISH CHANDRA SHARMA]
NEW DELHI
MAY 08, 2024
SLP (C) No. 28466 of 2023 Page 27 of 27