Child Custody – whether she could shift to India, even temporarily for a year or so, as in that eventuality, the Court can consider giving custody of Vaishali to her for that period. However, she expressed her inability to do so. She wants custody of Vaishali on her own terms. She wants Vaishali to come to U.K. and live with her. Vaishali does not want to go to U.K. at all. This Court cannot take the risk of sending Vaishali to a foreign country, against the wishes of a mature girl like Vaishali, as it may prove to be a turbulent and tormenting experience for her. That would not be in her interest. We also had interaction with Vaishali in the Chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocally expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to U.K. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her. She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and understands the long term effects of the decision which she has taken. We also find that she has been brought up in a conducive atmosphere. It, thus, becomes apparent that in the instant case, we are dealing with the custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, respondent has not been able to win over the confidence of Vaishali. We, therefore, feel that her welfare lies in the continued company of her father which appears to be in her best interest. The High Court in the impugned judgment had stated that since Vaishali was a minor girl, she needed company of her mother more to understand girly things. The High Court mentioned about the bond between girl child and mother in abstract and from there only the High Court came to the conclusion that it would be better to give the custody to the mother. The High Court did not go into the specific situation and circumstances of this case and did not make any objective assessment about the welfare of Vaishali. Many circumstances which we have narrated above were not taken note of. On the facts of the present case, we are convinced that custody of the child needs to be with father. She is already 15 years of age and within 3 years, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court.

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 717 OF 2013
|JITENDER ARORA & ORS. |…..APPELLANT(S) |
|VERSUS | |
|SUKRITI ARORA & ORS. |…..RESPONDENT(S) |

J U D G M E N T
A.K. SIKRI, J.
Marriage between appellant No. 1 (hereinafter referred to
as the ‘appellant’) and respondent No. 1 (hereinafter referred to as the
‘respondent’) was solemnized sometime in the year 1999, which was got
registered with the Registrar of Marriages, Faridabad on 14.12.1999. The
parties lived thereafter till March 2000 in Faridabad. However, carrying
this notion that great future lies for them out of India, the couple
shifted to U.K. on 23.03.2000. Ms. Vaishali Arora was born out of this
wedlock on 14.01.2002. Career-wise or financially, whether the couple was
better off in U.K., is not known. However, the soil of U.K. certainly did
not prove conducive to their matrimonial relationship which, with the
passage of time, turned bad to worst and from sweet to savoury to bitter.
So much so, legal battles started between them. Eschewing the details in
this behalf which are not needed and can be avoided for the sake of
brevity, suffice is to mention that respondent has taken decree of divorce
from the Court in U.K. Likewise, appellant who had shifted to India along
with Vaishali in 2010, filed the petition for divorce and has obtained
decree of divorce against the respondent. Both the divorce decrees are ex-
parte against each other. Fact remains, which is to be emphasised, that
the appellant and respondent have put an end to their matrimonial alliance
and the aforesaid move on their part clearly depicts that both of them
wanted divorce from each other. That is the reason that the aforesaid ex-
parte divorce decrees are not questioned by any of them.

As it happens in such cases, an acrimonious and charged up battle between
the appellant and the respondent has got concentrated upon the custody of
Vaishali Arora. Though the couple had moved to U.K. on 23.03.2000,
Vaishali was born on 14.01.2002 in Holy Family Hospital, Delhi. The
respondent had come to India when she was pregnant and shortly after her
birth, she went back along with the appellant and the new born child.
Vaishali came to India in July, 2002 to stay with her paternal grandparents
in Faridabad and went back to U.K. in January, 2003. Matrimonial discord
started erupting between the parties thereafter. Since both of them were
having their permanent jobs, the services of Katie Bradbury, a Child Minder
were obtained by them when Vaishali was merely 13 months old. In July,
2004, both husband and wife and their child were granted permanent resident
status of U.K. Thereafter, the parties had been coming to India off and on
quite regularly. Vaishali was admitted in a school in Camberley, U.K. In
July, 2007, Vaishali came to India and joined Manav Rachna International
School where she studied upto March, 2008. Thereafter, she again went back
to U.K. where she was admitted in a school. On 07.02.2007, Pushti, second
daughter, was born to the parties. Thereafter, the matrimonial
relationship between the appellant and the respondent became more bitter
and abusive. Respondent alleged the acts of domestic violence perpetrated
upon her by the appellant. Surrey Social Services Department investigated
into the issues of domestic violence. During this period, the impact of
adverse relations between the spouses upon their child Vaishali was also
studied from psychological point of view by the officer of the said
Department and reports given from time to time.

In June, 2007, Vaishali was issued Indian Passport by Indian High
Commission in London. On 04.08.2007, the appellant came to India. As
pointed out above, Vaishali had already come to India and was admitted in a
school in July, 2007. The appellant and Vaishali remained in India till
April, 2008. Even the respondent decided to move back to India with her
parents. However, on 13.04.2008, the appellant went back to U.K. The
respondent remained in India and went back to U.K. in May, 2009. On
reaching U.K., she lodged a complaint with the police on 13.05.2009 to
trace the whereabouts of Vaishali. Thereafter, she filed a case in the
U.K. Court in which, on 04.06.2009, an ex-parte order was passed
prohibiting the appellant from removing two minor children from England and
Wales. Further, restraint order was passed against the appellant from
removing Vaishali from attendance at Alwyn Infants School where she was
studying at that time. The appellant filed cross application and it led to
further legal tussle between the parties wherein the Court passed orders
from time to time. It is in November, 2009 that the respondent filed
divorce proceedings against the appellant in a Court in U.K. wherein she
has been granted decree of divorce. On 24.11.2009, as aforesaid, the
appellant shifted to India along with Vaishali. In their absence, the
respondent obtained British Citizenship of Vaishali on 13.07.2010.

Since the appellant had come to India with Vaishali, the respondent filed
Habeas Corpus Petition bearing Criminal Writ Petition No. 712 of 2010 in
the High Court of Punjab & Haryana wherein she impleaded, apart from the
appellant, his parents as well as Vaishali, as respondents. Other parties
who were made respondents were State of Haryana, Senior Superintendent of
Police, Haryana and Station House Officer, Police Station City Faridabad,
Haryana. This petition has been allowed by the High Court vide judgment
dated 25.05.2010 directing the appellant to handover the custody of
Vaishali to her mother i.e. the respondent. It is this judgment which is
impugned in the present proceedings.

It would be noticed that in May, 2010, when the petition was allowed,
Vaishali was almost 8½ years of age. Today, she is 15 years old.

The Special Leave Petition (which is converted into the instant appeal
after the grant of special leave) was filed immediately after the passing
of the impugned judgment by the High Court, which came up for hearing on
02.06.2010 before the Vacation Bench of this Court. While issuing notice
in the petition, this Court stayed the operation of the aforesaid judgment
of the High Court. That stay order has remained in operation, as a
consequence whereof custody of the child continues to be with the father.
The respondent, of course, has been granted visitation rights from time to
time as and when she came to India and moved an application in this behalf.
Such visitation rights have normally been for the entire period of her
stay in India on these visits, which range from seven days to even two
months. This fact is highlighted to show that the respondent is given
access to child for long periods as well, the details whereof are mentioned
hereafter.

When the case came up before this Court on 31.01.2013 (at that time,
Vaishali was 11 years of age), the Bench (comprising of Aftab Alam and
Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact
with her to ascertain her view point. Thereafter, the matter came up for
hearing on 02.04.2013 when the following order was passed:
“In the proceedings held on January 31, 2013, it was agreed between the
parties and was also noted in the order passed on that date that the child
Vaishali should stay with respondent No.1 (Sukriti Arora), the mother
of the child at her residence in Delhi for one month under monitoring by
this Court.

In continuation of that order, therefore, we direct that
Vaishali should stay with her mother, tentatively for one month from
today, subject to any further direction that may be passed by this Court
in the meanwhile. The address of respondent No.1 where she will stay with
her daughter Vaishali is 6578, Sector-C, Pocket-6&7, Vasant Kunj, Delhi
and her contact number (mobile)is:9968661822.

Ms. Madhavi Divan, one of the counsel representing the
petitioner shall hand over the child to her mother-respondent No.1 outside
the court room after we complete the passing of this order.

Respondent No.1 shall deposit her passport with the
Registrar (J-III) of this Court which shall be returned back to her
after Vaishali goes back to her father on completion of the term of her
stay with respondent No.1.

We are informed that Vaishali’s school is reopening from
April 4, 2013. On behalf of Respondent No.1, it is stated that she will
ensure that the child reaches the school in time and is brought back to her
residence after school hours. The child’s stay with her mother will,
in no way, affect her attendance at the school or her studies.

During her stay with the mother, the child will be free to
speak to her father on telephone (Mobile No. 9968661822). On behalf of
respondent No.1, it was stated that she would not create any obstruction in
the way of the child speaking to her father.

During the child’s stay with her mother, we would like some
responsible and competent person to monitor the arrangement. We,
accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi
High Court Mediation and Conciliation Centre, to monitor the arrangement on
behalf of this Court. Mrs. Ramachandran shall visit the mother and
the child at the address noted above on a date and time of her
convenience. She would inform respondent No.1 on her mobile phone about the
proposed date and time of her visit to the respondent’s place. She would
see how the relationship between the child and the mother is
developing and if need be, she would counsel both the child and the mother.

If the father wants to visit the child while she is staying
with her mother, he may do so at a time when Mrs. Sadhana
Ramachandran is also present there. For the purpose of the visit he will
have to take the necessary permission from Mrs. Ramachandran.

It is submitted on behalf of Respondent No.1 that she would
like to take the child to some resort or some hill station for a brief
holiday. We would like the mother and the child to stay in Delhi itself
but, in case, both the child and the mother together wish to go outside,
they may do so subject to the permission in writing taken from Mrs.
Ramachandran.

Mrs. Ramachandran would submit a report to this Court
within ten days from today.

Let this matter be listed for further direction along with the
report from Mrs. Ramachandran on April 12, 2013.”`

Mrs. Sadhana Ramachandran, who monitored the arrangement as per the
directions contained in the aforesaid order submitted her report. On going
through that report, further order dated 15.04.2013 was passed in the
matter and we reproduce that order as well in its entirety:
“Seen the report submitted by Mrs. Sadhana Ramachandran.

This Court is thankful to Mrs. Ramachandran for giving her
valuable time and attention and for acting as the counselor and
the Court’s agent in this arrangement.

We note that under the exigencies of the situation, the
mother and the child have shifted from the address noted in the previous
order and are now living at the following address:

Ms. Sukriti Arora,
C/o. K.D. Prasher
C-2633, Sushant Lok Phase – I,
Gurgaon (Haryana).

The shift has been made with the permission of
Mrs. Ramachandran and with the consent of the father of the child.

The arrangement made by order dated April 02, 2013 may
continue for a period of one month from that date as indicated in that
order.

It is, however, made clear that while staying with her
mother, the child Vaishali can speak to her father and to Mrs.
Ramachandran as and when she wishes.

Both the petitioner and the respondent are directed to pay
heed to the advice of Mrs. Ramachandran and take part in
mediation, as suggested by her, with an open mind.

List on May 01, 2013.

Before that date, Mrs. Sadhana Ramachandran is requested to
submit a final report.”

On 01.05.2013, this Court took note of the fact that the respondent was
leaving for U.K. In these circumstances, direction was given to her to
return the custody of Vaishali to her father i.e. the appellant. The
aforesaid background needs to be kept in mind while deciding this custody
dispute.

We have gone through the entire record, including the orders passed by the
Courts in U.K. from time to time in various proceedings. In a recent
judgment pronounced on 13.02.2017 delivered by this Court in the case of
Vivek Singh v. Romani Singh, of which one of us (A.K. Sikri, J.) was the
member of the Bench, dilemma of the Court and the law on the subject was
taken note of. We reproduce the following paras of the said judgment in
order to make it self-contained in all respects:
“7. We have given our utmost serious consideration to the respective
submissions which a case of this nature deserves to be given. In cases of
this nature, where a child feels tormented because of the strained
relations between her parents and ideally needs the company of both of
them, it becomes, at times, a difficult choice for the court to decide as
to whom the custody should be given. No doubt, paramount consideration is
the welfare of the child. However, at times the prevailing circumstances
are so puzzling that it becomes difficult to weigh the conflicting
parameters and decide on which side the balance tilts.

8. The Hindu Minority and Guardianship Act, 1956 lays down the principles
on which custody disputes are to be decided. Section 7 of this Act
empowers the Court to make order as to guardianship. Section 17 enumerates
the matters which need to be considered by the Court in appointing guardian
and among others, enshrines the principle of welfare of the minor child.
This is also stated very eloquently in Section 13 which reads as under:

“13. Welfare of minor to be paramount consideration.

(1) In the appointment or declaration of any person as guardian of a Hindu
minor by a court, the welfare of the minor shall be the paramount
consideration.

(2) No person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in marriage
among Hindus, if the court is of opinion that his or her guardianship will
not be for the welfare of the minor.”

9. The Court in the case of Gaurav Nagpal v. Sumedha Nagpal[1] stated in
detail, the law relating to custody in England and America and pointed out
that even in those jurisdictions, welfare of the minor child is the first
and paramount consideration and in order to determine child custody, the
jurisdiction exercised by the Court rests on its own inherent equality
powers where the Court acts as ‘Parens Patriae’. The Court further
observed that various statutes give legislative recognition to the
aforesaid established principles. The Court explained the expression
‘welfare’, occurring in Section 13 of the said Act in the following manner:

“51. The word “welfare” used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes which govern the
rights of the parents or guardians may be taken into consideration, there
is nothing which can stand in the way of the court exercising its parens
patriae jurisdiction arising in such cases.

52. The trump card in the appellant’s argument is that the child is living
since long with the father. The argument is attractive. But the same
overlooks a very significant factor. By flouting various orders, leading
even to initiation of contempt proceedings, the appellant has managed to
keep custody of the child. He cannot be a beneficiary of his own wrongs.
The High Court has referred to these aspects in detail in the impugned
judgments.”

10. We understand that the aforesaid principle is aimed at serving twin
objectives. In the first instance, it is to ensure that the child grows
and develops in the best environment. The best interest of the child has
been placed at the vanguard of family/custody disputes according the
optimal growth and development of the child primacy over other
considerations. The child is often left to grapple with the breakdown of an
adult institution. While the parents aim to ensure that the child is least
affected by the outcome, the inevitability of the uncertainty that follows
regarding the child’s growth lingers on till the new routine sinks in. The
effect of separation of spouses, on children, psychologically, emotionally
and even to some extent physically, spans from negligible to serious, which
could be insignificant to noticeably critical. It could also have effects
that are more immediate and transitory to long lasting thereby having a
significantly negative repercussion in the advancement of the child. While
these effects don’t apply to every child of a separated or divorced couple,
nor has any child experienced all these effects, the deleterious risks of
maladjustment remains the objective of the parents to evade and the court’s
intent to circumvent. This right of the child is also based on individual
dignity.

11. Second justification behind the ‘welfare’ principle is the public
interest that stand served with the optimal growth of the children. It is
well recognised that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric has been recognised in
many international covenants, which are adopted in this country as well.
Child-centric human rights jurisprudence that has been evolved over a
period of time is founded on the principle that public good demands proper
growth of the child, who are the future of the nation. It has been
emphasised by this Court also, time and again, following observations in
Bandhua Mukti Morcha v. Union of India & Ors.[2]:

“4. The child of today cannot develop to be a responsible and productive
member of tomorrow’s society unless an environment which is conducive to
his social and physical health is assured to him. Every nation, developed
or developing, links its future with the status of the child. Childhood
holds the potential and also sets the limit to the future development of
the society. Children are the greatest gift to humanity. Mankind has the
best hold of itself. The parents themselves live for them. They embody the
joy of life in them and in the innocence relieving the fatigue and drudgery
in their struggle of daily life. Parents regain peace and happiness in the
company of the children. The children signify eternal optimism in the human
being and always provide the potential for human development. If the
children are better equipped with a broader human output, the society will
feel happy with them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood — socially,
economically, physically and mentally — the nation gets deprived of the
potential human resources for social progress, economic empowerment and
peace and order, the social stability and good citizenry. The Founding
Fathers of the Constitution, therefore, have emphasised the importance of
the role of the child and the need of its best development.”

12. Same sentiments were earlier expressed in Rosy Jacob v. Jacob A.
Chakramakkal[3] in the following words:

“15. …The children are not mere chattels : nor are they mere play-things
for their parents. Absolute right of parents over the destinies and the
lives of their children has, in the modern changed social conditions,
yielded to the considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful members of the
society…”

13. It hardly needs to be emphasised that a proper education encompassing
skill development, recreation and cultural activities has a positive impact
on the child. The children are the most important human resources whose
development has a direct impact on the development of the nation, for the
child of today with suitable health, sound education and constructive
environment is the productive key member of the society. The present of the
child links to the future of the nation, and while the children are the
treasures of their parents, they are the assets who will be responsible for
governing the nation. The tools of education, environment, skill and health
shape the child thereby moulding the nation with the child equipped to play
his part in the different spheres aiding the public and contributing to
economic progression. The growth and advancement of the child with the
personal interest is accompanied by a significant public interest, which
arises because of the crucial role they play in nation building.”

In the case of Vivek Singh, the girl was 8 years of age. There also, the
child had remained with father for most of the period. It was decided to
give the custody to the mother. Among others, two weighty reasons which
prevailed with this Court were the age of the child, i.e. 8 years, and that
during this period, custody had remained with the father because of no
fault of the mother. This is clear from the following discussion in the
said judgment:
“14. In the instant case, the factors which weigh in favour of the
appellant are that child Saesha is living with him from tender age of 21
months. She is happy in his company. In fact, her desire is to continue
to live with the appellant. Normally, these considerations would have
prevailed upon us to hold that custody of Saesha remain with the appellant.
However, that is only one side of the picture. We cannot, at the same
time, ignore the other side. A glimpse, nay, a proper glance at the other
side is equally significant. From the events that took place and noted
above, following overwhelming factors in favour of respondent emerge.

(a) For first 21 months when the parties were living together, it is the
respondent who had nursed the child. The appellant cannot even claim to
have an edge over the respondent during this period, when the child was
still an infant, who would have naturally remained in the care and
protection of the respondent – mother, more than the appellant – father.
Finding to this effect has been arrived at by the High Court as well. This
position even otherwise cannot be disputed.

(b) The respondent was forcibly deprived by the custody of Saesha from
August 04, 2010 when she was forced to leave the matrimonial house. As per
the respondent, on that date the appellant in a drunken state gave beatings
to her and threw her out of the house. The respondent had called the
police. The police personnel called the military police and a complaint
was lodged. The respondent had also called her parents who had come to her
house from NOIDA. Her parents took hold of the child and the appellant and
when they were about to leave, the appellant pulled out the child from the
hands of her mother and went inside the house and locked himself. He was
drunk at that time. The police suggested not to do anything otherwise
appellant would harm the child. It was assured that the child would be
returned to her in the morning. In any case, the respondent and the
appellant were instructed to come to the police along with the child, next
morning. The appellant did not bring the child and threatened that he
would not give the child to her. Since then, she had been running from
pillar to post to get the child back but respondent had been refusing.

The respondent, therefore, cannot be blamed at all, if the
custody of the child remained with the appellant, after the separation of
the parties.
(c) Within the few days, i.e. on August 26, 2010, the respondent filed
the petition seeking custody of the child and for appointment of her
guardian. She did not lose any time making her intentions clear that as a
natural mother she wanted to have the custody of the child. It was her mis-
fortune that the trial court vide its judgment dated December 07, 2011
dismissed her petition. Though, she filed the appeal against the said
judgment immediately, but during the pendency of the appeal, the custody
remained with the appellant because of the dismissal of the petition by the
Family Court. The High Court has, by impugned judgment dated April 02,
2013 granted the custody to the respondent. However, the respondent has not
been able to reap the benefit thereof because of the interim orders passed
in the instant appeal. It is in these circumstances that child Saesha from
the tender age of 21 months has remained with the appellant and today she
is 8 years and 3 months. Obviously, because of this reason, as of today,
she is very much attached to the father and she thinks that she should
remain in the present environment. A child, who has not seen, experienced
or lived the comfort of the company of the mother is, naturally, not in a
position to comprehend that the grass on the other side may turn out to be
greener. Only when she is exposed to that environment of living with her
mother, that she would be in a position to properly evaluate as to whether
her welfare lies more in the company of her mother or in the company of her
father. As of today, the assessment and perception are one sided. Few
years ago, when the High Court passed the impugned judgment, the ground
realities were different.

xxx xxx xxx

16. 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…”

The circumstances, in the present case, however, are materially different.
Vaishali is a mature girl of 15 years of age. At this age, she can fully
understand what is in her best interest. She is competent to take a
decision for herself. There has been interaction with her by different
Benches of this Court from time to time, outcome whereof is reflected in
the orders passed after such meetings. She has unequivocally and without
any reservations expressed her desire to be with her father. More
importantly, she has very categorically said that she does not want to go
to U.K.

On 31.01.2013, this Court had noted that when her mother came to India, she
was not even willing to meet her. However, with the intervention of the
Court, a meeting was arranged between Vaishali and her mother. Even after
the said meeting, she was not willing to live with the respondent, her
mother. Fully realising that it may be due to the reason that all this
period, she had lived with her father, the Court deemed it proper to give
opportunity to the respondent to win love, confidence and trust of
Vaishali. The mother was allowed to stay for one month with Vaishali.
This order was continued on 02.04.2013 by extending the period by another
month. This time the arrangement that was made was to be monitored by Mrs.
Sadhana Ramachandran who was appointed for this purpose. Specific job
given to Mrs. Sadhana Ramachandran was to see how the relationship between
the child and the mother is developing. In case of need she was to counsel
both the child as well as the mother. Thus, an opportunity was given to
the respondent by allowing her the access of Vaishali for significant
period i.e. till 01.05.2013, whereafter the child was restored back to her
father, since the respondent had decided to go back to U.K. It is
unfortunate that even during this period, she was not able to influence the
thought process of Vaishali who is determined to remain with her father.

In fact, during the course of arguments before us, when the respondent was
also present, we asked the respondent as to whether she could shift to
India, even temporarily for a year or so, as in that eventuality, the Court
can consider giving custody of Vaishali to her for that period. However,
she expressed her inability to do so. She wants custody of Vaishali on her
own terms. She wants Vaishali to come to U.K. and live with her. Vaishali
does not want to go to U.K. at all. This Court cannot take the risk of
sending Vaishali to a foreign country, against the wishes of a mature girl
like Vaishali, as it may prove to be a turbulent and tormenting experience
for her. That would not be in her interest.

We also had interaction with Vaishali in the Chambers earlier. On the date
of hearing also, Vaishali was present in the Court and in front of her
parents, she unequivocally expressed that she was happy with her father and
wanted to continue in his company and did not want to go with her mother,
much less to U.K. From the interaction, it is clearly discernible that she
is a mature girl who is in a position to weigh the pros and cons of two
alternatives and to decide as to which course of action is more suited to
her. She has developed her personality and formed her opinion after
considering all the attendant circumstances. Her intellectual
characteristics are adequately developed. She is able to solve problems,
think about her future and understands the long term effects of the
decision which she has taken. We also find that she has been brought up in
a conducive atmosphere. It, thus, becomes apparent that in the instant
case, we are dealing with the custody of a child who is 15 years of age and
has achieved sufficient level of maturity. Further, in spite of giving
ample chances to the respondent by giving temporary custody of Vaishali to
her, respondent has not been able to win over the confidence of Vaishali.
We, therefore, feel that her welfare lies in the continued company of her
father which appears to be in her best interest.

The High Court in the impugned judgment had stated that since Vaishali was
a minor girl, she needed company of her mother more to understand girly
things. The High Court mentioned about the bond between girl child and
mother in abstract and from there only the High Court came to the
conclusion that it would be better to give the custody to the mother. The
High Court did not go into the specific situation and circumstances of this
case and did not make any objective assessment about the welfare of
Vaishali. Many circumstances which we have narrated above were not taken
note of.

On the facts of the present case, we are convinced that custody of the
child needs to be with father. She is already 15 years of age and within 3
years, she would be major and all this custody battle between her parents
would come to an end. She would have complete freedom to decide the course
of action she would like to adopt in her life. We, thus, allow this appeal
and set aside the judgment of the High Court.
No costs.

………………………………………J.
(A.K. SIKRI)

………………………………………J.
(R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 17, 2017.
ITEM NO.1A COURT NO.8 SECTION IIB
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No. 717/2013

JITENDER ARORA & ORS. Appellant(s)

VERSUS

SUKRITI ARORA & ORS. Respondent(s)

Date : 17/02/2017
This appeal was called on for pronouncement of judgment today.
For Appellant(s)
Mr. S. S. Jauhar, Adv.

For Respondent(s)
Mr. Viresh B. Saharya, Adv.

Mr. Birendra Kumar Choudhry, Adv.
Mr. Sanjay Kumar Visen, Adv.
Hon’ble Mr. Justice A. K. Sikri pronounced the judgment of the
Bench comprising His Lordship and Hon’ble Mr. Justice R. K. Agrawal.

The appeal is allowed in terms of the signed reportable
judgment.
In view thereof, pending applications, if any, stand disposed
of.
(Nidhi Ahuja) (Mala Kumari Sharma)
Court Master Court Master

[Signed reportable judgment is placed on the file.]
———————–
[1]
(2009) 1 SCC 42
[2] (1997) 10 SCC 549
[3] (1973) 1 SCC 840

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