Holding

The Supreme Court held that, in the paramount interest of the child’s welfare, custody should be awarded to the mother for at least one academic year, subject to the child’s admission in the mother’s school.

Summary

Vivek Singh (father) and Romani Singh (mother) contested custody of their minor daughter Saesha Singh. The mother filed a petition under Sections 25, 10 and 12 of the Guardians and Wards Act, 1980 seeking custody and guardianship; the Family Court dismissed it, but the Delhi High Court granted custody to the mother. On appeal, the Supreme Court examined the welfare principle under Sections 13 and 17 of the Hindu Minority and Guardianship Act, 1956, considering the child's age, her early bonding with the mother, the father's alleged hostility, and the risk of parental alienation. Although the child expressed a desire to stay with the father, the Court held that continuous maternal care, especially given the mother’s teaching profession and the child’s schooling, better served the child’s overall development. Consequently, the Court directed that the mother be given custody for one academic year, subject to the child’s admission in the mother’s school, and ordered the father to cooperate.

Issues considered

The applicability of Sections 25, 10 and 12 of the Guardians and Wards Act, 1980 for granting custody and appointment of guardian.
Whether the welfare of the minor, as mandated by Sections 13 and 17 of the Hindu Minority and Guardianship Act, 1956, requires custody to be awarded to the mother despite the child’s expressed wish to stay with the father.
The impact of parental alienation and the father’s alleged hostility on the child’s psychological welfare.
The relevance of the mother’s profession and the child’s schooling in determining the best interests of the child.

Legislation cited

Guardians and Wards Act, 1980s. 10, s. 12, s. 25
Hindu Minority and Guardianship Act, 1956s. 13, s. 17, s. 7

Subjects

custodyguardianshipwelfare of childHindu Minority and Guardianship ActGuardians and Wards Actparental alienationminor childbest interest of childeducationfamily law

Judgment

[2017] 2 S.C.R. 312

A YIVEK SINGH
v.
ROMANI SINGH
(Civil Appeal No. 3962 of2016)
B FEBRUARY 13, 2017
[J. CHELAMESWAR AND A. K. SIKRI, JJ.]
Guardians and Wards Act. 1980 - s. 25 rlw. ss. JO and 12 -
Application under - For custody and appointment of Guardian of
minor daughter - Filed by the mother - Dismissed by the Family
c Court - Allowed by High Court - On interaction with the minor
child, she expressed her wish to continue to stay with her father -
Held: Principle of welfare of minor child is enumerated in ss. 17
and 13 of Hindu Minority and Guardianship Act, 1956 - Jn the
instant case, the factors which weigh in favour of the father are
D that the child is livingwith him from the age of 21 months and that
she desires to continue to live with him - However, for the first 21
months, it was the mother who nursed the child and she was forcibly
deprived of the custody when she was forced to leave the matrimonial
house - Within few days, mother also moved the court seeking the
custody - The intensity of negative feeling of father against the
E
mother could have affected the psyche of the child - Taking into
account the crucial phase of life of the child, it is necessary that
she is in the continuous company of her mother as well, for some
time - Jf the child is admitted in the school where her mother is
teaching, the child would be under fi1/l care and protection of her
F mother and would° gel heller education and guidance - The mother
is granted custody of the child for one year - She is directed to get
the admission for the child in the school where she is teaching - {f
the child gets admission, custody of the child shall be handed over
to the mother one week before the academic sessions 2017-18 starts
- Matter to be listed in March 2018 for fi1rther directions - Hindu
G
Minority and Guardianship Act, 1956 - ss. 7, 13 and 17.
Giving directions, the Court
HELD: 1. The principle of 'welfare of minor child' as
provided u/s. 13 of Hindu Minority and Guardianship Act, 1956,
H
312
VIVEK SINGH v. ROMANI SINGH 313

is aimed at serving twin objectives. In the first instance, it is to A
ensnre 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
B
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 c
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. This right of the child is also based on individual dignity.
[Para 10] (322-H; 323-A-D]
D
Gaurav Nagpa/ v. Sumedha Nagpal (2009) 1 SCC
42 : [2008] 16 SCR 396 - relied on.
2. 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 E
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. A proper education F
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 G
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
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314 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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. [Paras 11, 13) [323-D-E; 324-E-G)
B
Bandhua Mukti Morcha v. Union of India & Ors.
(1997) 10 SCC 549 : [1997) 2 SCR 379; Rosy Jacob
v. Jacob A. Chakramakkal (1973) 1 SCC 840 : [1973)
3 SCR 918 - relied on.
c 3. In the instant case, the factors which weigh in favour of
the appellant-father are that the child 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 to hold that custody of the
child remain with thf appellant. However, for first 21 months
D when the parties were living together, it is the respondent-mother,
who bad nursed the child. The respondent was forcibly deprived
by the custody of the child when she was forced to leave the
matrimonial house. The respondent, therefore, cannot be blamed
at all, ifthe custody of the child remained with the appellant, after
E the separation of the parties. Within the few days, 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. [Para 14) [324-H; 325-A, C, D, G-H; 326-A]

F 4. The intensity of negative feeling of the appellant towards
the respondent would have obvious effect on the psyche of the
child who bas 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
G appellant's view point cannot be ruled out thereby diminishing
the affection of the child 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
H
VIVEK SINGH v. ROMANI SINGH 315

the child, as perceived by the appellant. Psychologist term it as A
'The Parental Alienation Syndrome'. [Para 16] (328-C-E]
5. The child 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 B
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 model good c
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 D
she is in the company of her mother as well, for some time. [Para
16] [327-G-H; 328-A-B]
6. The notion that a child's 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 litzrature. E
Empirical studies show that mother infant "bonding" begins at
the child's birth. Psychological theory hypothesizes that the
mother is the center of an infant's small world, his psychologieal
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 child's F
later capacity to fulfill her individual potential and to form
attachments to other individuals and to the human community.
However, 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. G
Such au 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. [Paras 17, 18] (329-B-E]
7. Therefore, continuous company of the mother with the
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316 SUPREME COURT REPORTS [2017] 2 S.C.R.

A child for some time, is absolutely essential. Mother-respondent
is a teacher in a prestigious school. If the child is admitted in the
same school where her mother is teaching, not only the child
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. Thus, the factors in favour
B
of respondent are weightier than those in favour of the appellant.
It is a fit case where respondent deserves a chance to have the
custody of the child for the time being, i.e., at least for one year,
and not merely visitation rights. [Paras 17, 19, 20] (329-A, F-G]
8. The Respondent is allowed to process the case of
c admission in the School where she is teaching and for this purpose
appellant shall fully cooperate. In case she is able to secure the
admission, custody of the child shall be handed over to the
respondent by the appellant one week before the next academic
session starts. Custody shall remain with the respondent for full
D academic year. The matter shall be listed in the month of March,
2018 for further directions when this Court would assess as to
how the arrangement devised above has worked out. However,
liberty is granted to both the parties to move application for
variation of the aforesaid arrang~ment, in case consequences of
the aforesaid arrangements turn out to be such which necessitate
E alteration or modification in the aforesaid arrangement. [Para 21]
(330-B-D]
Case Law Reference
[2008] 16 SCR 396 relied on Para9
F .fl997J 2 SCR 379 relied on Para 11
.f1973J 3 SCR 918 relied on Para 12
ClVIL APPELLATE JURlSDlCTlON: Civil Appeal No. 3962
of2016.
G From the Judgment and Order dated 02.04.2013 of the High
Court of Delhi at New Delhi in FAO No. 39 of2012
WlTH
Contempt Petition (C) No. 39 l of2014 in Civil Appeal No. 3962
of2016.
H
VIVEK SINGH v. ROMANI SINGH 317

V. Shekhar, Sr.Adv., Ms. Namita Roy, NishantAnand, Mrs. Sarla A
Chandra, Soumo Pa lit, Samir Ali Khan, Advs. for the Appellant.
Ms. Geeta Luthra, Sr. Adv., Bharat Arora, Rohit Singh,
Ms. Prerna Mehta, Advs. for the Respondent.
The Judgment of the Com1 was delivered by
B
A. K. SIKRI, J. I. The appellant and the respondent tied
matrimonial chord on November 25, 2007 as per Hindu rites 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 c
the said knot. Both the parties blame each other for this sordid state of
affairs. Over a period oftime, 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 D
are living separately for quite sometime, 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.
E
2. It was on August 04, 20 I0, 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 F
efforts in this behalf, the respondent filed petition being GS No. 43 of
20 I 0 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
G
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
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318 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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,
B
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
c mentioned that respondent's 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
D
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-I 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
E 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
F 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
G 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 wou Id not have taken her clothes
H
VIVEK SINGH v. ROMANI SINGH 319
(A. K. SIKRI, J.]

with her. The High Court also observed that the Family Judge bad failed A
to consider that from the birth of the child, i.e., October29, 20()8 till the
separation of the parties on August 04, 2010 (for a period of2 l 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
B
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 c
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 the respondent, the High Court in turn granted visitation
rights to the appellant, father of the child, in the following manner:
"33. Since the child is a school going child and respondent is D
living at Meerut, in these circumstances, respondent will be at
liberty to take the child from the appellant on every 4'h Friday of
the month at 5.30 p.m. and the child shall spend two days with
the respondent. The child shall remain with the father on Friday
followed by Saturday and Sunday. The child shall be returned E
safely to the mother on Sunday at 6.00 P.M.
34. Each year during Summer vacation custody of Baby Saesha
Singh would be entrusted by the appellant to the respondent for
a period.of 15 days to be inter-se agreed upon between the parties
and in case of any non-agreement, the dates to be decided by F
the learned Family Court.
35. Each year during Winter vacations Baby Saesha Singh would
be entrusted by the appellant to the respondent for a period of 4
days to be inter-se agreed upon between the parties and in case
of any non -agreement, the dates to be decided by the learned
G
Family Court.
36. On the birthday of child, custody of Baby Saesha Singh
would be entrusted to the respondent for a period of 4 hours in
the evening, the exact hours to be mutually agreed upon by the
parties."
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320 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 4. ln 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. Conseq11ence
thereof is that the custody of child has remained with the appellant.
B
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.
c 5. The instant appeal came up for arguments on Novemb~r 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
D 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. lti 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.
E As Ms. lti 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
F 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 wantto 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
G a very sensitive phase of mental and physical growth.
6. After receiving this report, we had heard the counsel for the
parties at length. Mr. V. Shekhar, learned senior counsel appearing for
the appellant took umbrage under the aforesaid report of the Counsellor
and submitted that since this was the wish of the child as well, the appellant
H
VIVEK SINGH v. ROMANI SINGH 321
[A. K. S!KRI, J.)

should be allowed to retain the custody of the child. He emphasised the A
fact that with effect from October 05, 20 l 0 when the child was only 21
months' old, it is the father who has taken care of the child and, therefore,
it was in the best interest of the child that this arrangement is not disturbed.
Ms. Geeta Luthra, senior counsel appearing for the respondent, countered
the aforesaid submissions of the appellant by contending that the High
B
Court had discussed all the pros and cons of the issue and arrived at a
conclusion that the respondent/mother was best person to take care of
the child. She emphasised that having regard to the present age of the
child, who was little more than 8 years of age, her welfare demands
that she be under the care and protection of the mother who is in a
better position to look after her. She also submitted that the High Court c
had, by impugned judgment rendered on April 02, 2013, entrusted the
custody to the respondent and only because of the stay of contempt
proceedings given by this Court, the respondent is deprived of the custody
of the child for all these years, and she should not be made to suffer the
prejudice thereof. She narrated the comparative circumstances of the
D
job profile of the appellant and the respondent in an endeavour to
strengthen her aforesaid submission with emphasis on the fact that
normally a girl child wants to be with her mother. Here, the respondent
being a teacher herself, is in a much better position to take care of her
education needs as well.
7. We have given our utmost serious consideration to the E
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 F
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 G
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:
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322 SUPREME COURT REPORTS [2017] 2 S:C.R.

A "13. Welfare of minor to be paramount consideration.
( 1) In the appointment or declaration of any person as guardian
ofa 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
B the provisions of this Act or ofany law relating to guardianship
in marriage among Hindus, ifthe court is of opinion that his or
her guardianship will not be for the welfare of the minor."
9. This Court in the case of Gaurav Nagpal v. Sumetflia
Nagpal' stated in detail, the law relating to custody in England and
c 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
D 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
E 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.
F
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
G 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
'(2009) 1 sec 42
H
VIVEK SINGH v. ROMANI SINGH 323
[A. K. SIKRI, J.]

and develops in the best environment. The best interest of the child has A
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
B
regardingthe 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 c
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.
D
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 jurisprud~nce that has been evolved over a period E
oftime 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
Bandliua Mukti Morella v. Union of India & Ors.':
"4. The child of today cannot develop to be a responsible and F
productive member of tomorrow's society unless an env:ronment
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 G
are the greatest gift to humanity. Mankind has the best hold of
itself. The parents themselves live for them. They embody the
joy oflife in them and in the innocence relieving the fatigue and
drudgery in their struggle of daily Iife. Parents regain peace and
'(1997) 10 sec 549
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324 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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,
B
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
c need of its best development."
12. Same sentiments were earlier expressed in Rosy Jacob v.
Jacob A. ClwkramakkaP 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
D destinies and the lives of their children has, in the modem 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
E 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 memberofthe society.
F 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 growtl1 and
G 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.
14. In the instant case, the factors which weigh in favour of the
' ( 1973) 1 sec 840
H
VIVEK SINGH v. ROMANI SINGH 325
fA. K. SIKRI, J.l

appellant are that child Saesha is living with him from tender age of2 I A
months. She is happy in his company. Jn fact, her desire is to continue
to live with the appellant. Normally, these considerations would have
prevailed upon us to hold that custody ofSaesha 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
B
side is equally significant. From the events that took place and noted
above, following overwhelming factors in favour ofrespondent 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
c
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 D
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 E
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 F
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, ifthe custody G
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
H
326 SUPREME COURT REPORTS [2017] 2 S.C.R.

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 appezl, the
custody remained with the appellant because of the dismissal of the
petition by the Family Court. The High Court has, by impugned judgment
B
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
c 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 ofl iving with her mother, that she would be in a position
D
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.
15. While coming to the conclusion that the respondent as mother
E 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 following discussion:
"31. The role of the mother in the development of a child's
personality can never be doubted. A child gets the best protection
F through the mother. It is a most natural thing for any child to
grow up in the company of one's 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 love, affection,
care and sympathies to a child as that of a mother. The company
G 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
H August 04, 2010 she had been pursuing for the custody of her
VIVEK SINGH v. ROMANI SINGH 327
[A. K. SIKRI, J.]

child. She had also visited the police station and approached the A
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
B
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 these circumstances,
it cannot be said that the appellant has not care for the child. c
Further, respondent is an 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
D
any delay and has all love and affection forthe 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 E
mother's 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
F
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."
16. The aforesaid observations, contained in para 31 of the order
of the High Court extracted above, apply with greater force today, when G
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 understa•1d 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 H
328 SUPREME COURT REPORTS [2017] 2 S.C.R.

A 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 model good behaviour and set healthy and positive examples as
much and as often as possible. It is the age when her emotional
B
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
c 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 ofnegative 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
D
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 view point 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
E matrimonial discord between the two parties would have been understood
by Saesha, as perceived by the appellant. Psychologist term it as 'The
Parental Alienation Syndrome''. It has at least two psychological
destructive effects:
(i) First, it puts the child squarely in the middle of a contest of
F 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.
G
(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,
"The Parental Alienation Syndrome was originally described by Dr. Richard Gardner
in ··Recent l)evelopments in Child Custody Litigation··. The Acade111y Fon1111 Vol. 29
No. 2: The American Academy of Psychoanalysis. 1985).
H
VJVEK SINGH v. ROMANI SINGH 329
[A. K. SIKRI, J .]

·and as someone who is devoid of any positive characteristics Both of A
these assertions represent one parent's distortions of reality.
17. 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 child's primary need is
for the care and love of its mother, where she has been its prirrary care B
giving parent, is supported by a vast body of psychological literature.
Empirical studies show that mother infant "bonding" begins at the child's
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 mother's voice
by four weeks, actively demands her presence and protests her absence
c
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 infant's small world, his psychological home base,
and that she "must continue to be so for some years to come."
Developmental psychologists believe that the quality and strength of this D
original bond largely determines the child's 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 E
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. lt is also to be emphasised that her mother is a teacher in a
prestigious Kendriya Vidyala school. Saesha is herself a school going F
child at primary level. lf 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 G
weightier than those in favour of the appellant which have been noted
above. lt 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.
21. New academic session would start in April, 2017. At this
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330 SUPREME COURT REPORTS [2017] 2 S.C.R.

A time, the process of fresh admissions in schools is underway. We are
confident that the respondent shall be able to have Saesha admi~ed in
her school where she is teaching inasmuch as wards of the teachers are
accorded such preferences. Therefore, the respondent is allowed to
process the case of admission of Saesha in Kendriya Vidyala, INA
Colony, New Delhi and for this purpose appellant shall fully cooperate.
B
In case she is able to secure the admission, custody of Saesha shall be
handed over to the respondent by the appellant one week before the
next academic session starts. Custody shall remain with the respo11dent
for full academic year. The matter shall be listed in the month of March,
2018 for further directions when this Court would assess as to how the
c arrangement devised above has worked out. We, however, give liberty
to both the parties to move application for variation of the aforesaid
arrangement, in case consequences of the aforesaid arrangements turn
out to be such which necessitate alteration or modification in the aforesaid
arrangement.
D 22. It is ordered accordingly.

Kalpana K. Tripathy Directions issued.