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Preferences & Inclinations Of Child Are Important In Determining Issue Of Parental Custody : Supreme Court [Read Judgment]

Radhika Roy
30 Oct 2020 2:13 PM GMT
Preferences & Inclinations Of Child Are Important In Determining Issue Of Parental Custody : Supreme Court [Read Judgment]
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The Supreme Court, in a judgement pertaining to transnational custody of child, relied upon Section 17(3) of the Guardian and Wards Act, 1890 which states that the Court can consider the preferences of the minor if he/she is old enough to form an intelligent preference. "As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the...

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The Supreme Court, in a judgement pertaining to transnational custody of child, relied upon Section 17(3) of the Guardian and Wards Act, 1890 which states that the Court can consider the preferences of the minor if he/she is old enough to form an intelligent preference. 

"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. 

This was applied by a 3-Judge Bench comprising of Justices UU Lalit, Indu Malhotra and Hemant Gupta (2:1) while allowing the custody of child to his father who is located in Kenya after conducting a personal interaction with the child in Chambers during the pendency of the proceedings, to ascertain his aspirations and wishes.

The Apex Court reaffirmed the principle in the instant case (Smriti Madan Kansagra v. Perry Kansagra) that while exercising parens patriae jurisdiction, the sole and paramount consideration would be to subserve the interest and welfare of the child.

Therefore, in order to decide what was in best interest of the child, various factors were to be taken into consideration by the Court. These guiding factors, it was noted, had been laid down in the case of Nil Ratan Kundu v. Abhijit Kundu (2008) and had also been stipulated in Section 17 of GWA.

Section 17(3), in particular, states that "If the minor is old enough to form an intelligent preference, the Court may consider that preference".

The Court held 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)…"

Such consideration, the Apex Court observed, could be discerned from personal interaction of the Courts with the minor and the minor's choice could be of crucial importance in assisting the Court to arrive at a judicious decision on the issue of his or her custody.

The Court then proceeded to touch upon the interactions of the Court with the minor child and listed their findings.

"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".

Placing reliance on the findings of the Family Court, the High Court as well as the Report of the Counsellor, the Supreme Court found that the minor showed more affection towards his father and the bond between the two was genuine.

Noting that as per Section 17(3) the preferences of the child were of vital importance for determining the issue of custody of the minor, 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.

The bench also applied the concept of "mirror order" while allowing the custody to the father of the child located in Kenya(Separate story on that aspect may be read here).

Justice Hemant Gupta dissented from the majority judgment to hold that the custody of the child should remain with his mother in Delhi.

Case Details

Title : Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Coram : Justices UU Lalit, Indu Malhotra and Hemant Gupta

Appearances : Senior Advocate Shyam Divan & Advocates P Banerjee and Nidhi Mohan Parashar(for appellant) and Advocates Anunya Mehta and Inderjeet Saroop(for respondent)

Click here to download the judgment


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