Case: Lt Col Vivek Singh Vs. Romani Singh

The appellant and the respondent tied matrimonial chord on November 25, 2007 as per Hindu rights and ceremonies. The appellant is an army officer posted in Meerut and the respondent is a teacher in Kendriya Vidyala-3, INA Colony, New Delhi. This, so-called sacrosanct alliance, alluded the couple, inasmuch as soon after the marriage, matrimonial discord surfaced, which has loosened the said knot. Both the parties blam each other for this sordid state of affairs. Over a period of time, relationship between the parties has been ruined, which is unfortunate. It is more so, as they have not been able to move on in their respective lives as well. But, what is more unfortunate is that the acrimony between the two of them, because of which they are living separately for quite some time, life of their only daughter Saesha Singh, who was born from their wedlock on October 29, 2008, is becoming more and more miserable. In the instant appeal, we are concerned with most delicate and difficult problem, namely, who should be given the custody of Saesha Singh.2. It was on August 04, 2010, when the fight between the appellant and the respondent took an ugly turn forcing the respondent to leave the matrimonial house and the custody battle started from that date itself, when Saesha was not even two years of age. While leaving the matrimonial house, though the respondent wanted to take the child along, the appellant did not allow her to do so. After making certain peaceful efforts in this behalf, the respondent filed petition being GS No. 43 of 2010 under Section 25 read with Sections 10 and 12 of the Guardians and Wards Act, 1980 (hereinafter referred to as the Act) on August 26, 2010 for the custody and appointment of the Guardian of the minor daughter, Saesha Singh before the Principal Judge of the Family Court at Delhi at Dwarka, New Delhi. She stated in this petition that she had been in continuous possession, care and protection of the child since her birth and the respondent had no love and affection for the child. In his absence, when he is away for duty, his Orderly looks after the girl child. She also alleged that the appellant leaves for his office at 8.30 a.m. and returns back late in the evening and, therefore, he is not in a position to look after the basic needs of the child. On the other hand, the respondent had been devoting all her time to the child after coming from the school and during her duties in the school, the child is being looked after by her parents who had been frequently visiting the matrimonial house. She pleaded that for the mental well-being and proper upbringing of the child, her custody should be given to the respondent, being her natural mother and she be also appointed as her guardian. The appellant herein contested the said petition by filing the written statement wherein he took the stand that the respondent was not in a position to look after the child as there is nobody to look after her when the respondent goes for work. He also mentioned that respondents parents are residing at NOIDA whereas she is working and living in Delhi. On the contrary, it is the appellant who had provided all necessary expenses for the maintenance of the child, and even the respondent. He even accused the respondent for invariably getting drunk on their visits to Army Officers Mess in the parties. The trial court framed the issue which touches upon the dispute that is whether the petitioner (the respondent herein) is entitled to custody of the child. Evidence was led by both the parties who examined themselves as PW-1 and RW-1 respectively. The Principal Judge, Family Court was of the opinion that the appellant is fit person to retain the custody of the child and, therefore, dismissed the petition filed by the respondent herein. The respondent challenged the order of the Family Court by filing the appeal, i.e. FOA No. 39 of 2012 in the High Court which has been allowed by the High Court. The High Court has found it appropriate to handover the custody of the child to the respondent/mother. In the opinion of the High Court, the respondent, being mother of a girl child who was even less than five years of age at the relevant time, was better suited to take care of the child and this course of action is in the best interest of the child. The High Court, in the process, found fault with the approach adopted by the Family Judge, which had mainly relied upon the incident of August 07, 2010 to deny the custody of the child to the respondent on the ground that she had herself abandoned the child on the said date. According to the High Court, the incident as narrated by the appellant was not believable and the version of the respondent, on the contrary, inspired confidence. The respondent had stated that though she wanted to take the child with her, the appellant had snatched her from the respondent. According to the High Court, if the intention of the respondent was to abandon the child she would not have taken her clothes with her. The High Court also observed that the Family Judge had failed to consider that from the birth of the child, i.e., October 29, 2008 till the separation of the parties on August 04, 2010 (for a period of 21 months) the child remained through out with the respondent who had been attending her school as well as taking care of the child after the school hours and there was nothing on record to show that the respondent had neglected the child for a single day during that period and it was not even the case of the appellant.3. We may also mention, at this stage, that since the petition of the respondent herein had been dismissed by the trial court, because of this reason, custody of the child remained with the appellant, during the pendency of the appeal in the High Court, though by interim arrangement visitation rights were given to the respondent. Since the appeal stood allowed by the High Court as per which custody of the child was to be handed over to theIn special leave petition (now converted into instant appeal) notice was issued on July 01, 2013. As the appellant had not complied with the direction of the High Court, it had resulted in filing contempt petition by the respondent against the appellant. While issuing the notice, this Court stayed those contempt proceedings as well. Consequence thereof is that the custody of child has remained with the appellant. Visitation rights of the respondent, however, as per interim arrangement vide orders dated February 21, 2012 by the High Court during the pendency of the appeal were restored. Thereafter, this Court has passed certain orders for handing over the custody of the child during festivals or vacations.5. The instant appeal came up for arguments on November 22, 2016 when this Court directed that the child be brought to the court on November 23, 2016 so that the Court is able to interact with her. On November 23, 2016, after some interaction, it was felt that since Saesha has remained in the company of her father for all these years, influence of the appellant on the child is predominant. She had even expressed her desire to remain with the appellant. In order to have proper psychological and sociological analysis of the desires of the child, this Court deemed it appropriate to take the services of Ms. Iti Kanungo, who is Principal Counsellor attached to the Family Court, Patiala House, New Delhi. She was also requested to come to the Court on that day. As Ms. Iti Kanungo was also present, she interacted with the child for quite some time and, thereafter, informed the Court that some more interaction was needed. For this purpose, a meeting on November 26, 2016 was fixed when the child was to be produced before her at the Family Court, Patiala House, New Delhi. After interaction with the child, Ms. Kanungo has submitted her report dated December 12, 2016 stating that the child is more interested in living with her father as she does not want to change her present living environment. The report also indicates that bitter relationship between her parents discomforts her and she wants to sleep, play and study as per her own desire like any normal kid. At the same time, the report also observes that the child is in a very sensitive phase of mental and physical growth.

Reasoning:
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 respondentFor 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.While coming to the conclusion that the respondent as mother was more appropriate to have the custody of the child and under the given circumstances the respondent herein was fully competent to take care of the child, the High Court proceeded with the followingThe role of the mother in the development of a childs personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of ones mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of lover, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child.32. It may be noticed that the stand of the appellant is that since August 04, 2010 she had been pursuing for the custody of her child. She had also visited the police station and approached the CAW Cell. It is also admitted position that within 22 days, i.e., on August 26, 2010 the petition for the grant of custody of child was filed by her. Had she abandoned the child of her own she would not have pursued continuously thereafter for getting the custody of the child. Even she had requested the learned Principal Judge, Family Court for interim custody of the child which was given to her in the form of visitation rights thrice in a month and she and her family had been meeting the child during that period. After filing the appeal, the appellant has been taking the interim custody of the child as is stated above. In thes3e circumstances, it cannot be said that the appellant has not care for the child. Further, respondent is any army Officer. During the course of his service he will be also getting non-family stations and it will be difficult for him to keep the child. Further, even though as per him his parents are looking after the child but when the natural mother is there and has knocked the door of the court without any delay and has all love and affection for the child and is willing to do her duty with all love and affection and since the birth of the child she has been keeping the child. In these circumstances, she should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents cannot be a substitute for natural mother. There is no substitute for mothers love in this world. The grandparents are old. Old age has its own problems. Considering the totality of facts and circumstances, the welfare of the child lies with the mother, i.e, appellant who is educated, working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother.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.The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.