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DSG v. AKG

Special Leave Petition (Civil) · 2019 INSC 1376Decided 16 Dec 2019
Special Leave Petition (Civil) No. 25098 of 2019
Justice Uday Umesh Lalit · Justice Indu Malhotra · Justice Krishna Murari

Background

A mother challenged a Delhi High Court order that had confirmed a Family Court arrangement giving custody of her 12-year-old daughter to the father. The father had earlier sought custody alleging the mother suffered from paranoid schizophrenia and mistreated the child; the mother countered with allegations that the father had sexually abused the child. Three separate court-appointed counsellors interviewed the child, and each reported that the child wanted to live with her father and denied any abuse. During the case, the mother at one point took the child to Goa in violation of a court-ordered custody schedule, leading to contempt proceedings against her.

Decision Breakdown

The Supreme Court personally interviewed both parents and the child before deciding. It found the child, then studying in Class VII, to be articulate and unequivocal in her wish to live with her father, and held she was capable of forming an intelligent preference about her own custody. Relying on its earlier ruling in Nil Ratan Kundu v. Abhijit Kundu, the Court held that in custody matters exercising parens patriae jurisdiction, the child's welfare, not rigid procedure, is paramount. It affirmed the existing arrangement giving custody to the father with defined visitation rights to the mother, while noting its findings were necessarily "prima facie" since custody matters always remain open to revisiting as circumstances change. The petition was disposed of on this basis.

Lesson Learnt

In custody disputes, Indian courts give significant weight to the directly-expressed wishes of a child old enough to form an intelligent preference, verified through independent counsellors and even a personal interview by the judges: allegations alone, without corroboration, will not override a child's clearly and consistently expressed welfare interests.

Official source (sci.gov.in)View Judgment (PDF)

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