These principles, read together, make it clear
that the son’s disclosure and his safety cannot be
subordinated to the father’s claim for custody
particulars when the criminal case is still pending.
Under no circumstances, the respondent-father, as
long as he is facing prosecution, can be considered to
be a person entitled to custody of the children. Such
a course of action, apart from being contrary to the
solemn object of the Juvenile Justice Act, may also
lead to the prosecution being frustrated, inasmuch
as, were the custody of the son to be handed to the
respondent-father, the possibility of the son giving a
free and fair deposition in those proceedings would
virtually be negligible. {Para 56}
57. We are of the considered view that, even
assuming the respondent-father succeeds in the
quashing petition pending before the High Court of
Calcutta and the criminal proceedings arising out of
the POCSO FIR are quashed, the Courts would have
to remain circumspect in assessing the
circumstances and background in which the
allegations came to be levelled by the son against the
respondent-father. The subsequent outcome of the
criminal proceedings, by itself, cannot efface the
circumstances in which the disclosure was made or
render the child’s apprehensions wholly irrelevant for
the purposes of determining his welfare and custody.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 12774 OF 2026
DEBARATI BHUNIA CHAKRABORTY Vs
SUMAN SANKAR BHUNIA
Author: Mehta, J.
Citation: 2026 INSC 1043.
Dated: SEPTEMBER 23, 2026.
1. Heard.
2. The two minor children of the parties, namely,
SSB, aged about 13 years and DW, aged about 7
years, are facing the disastrous consequences of
parental alienation owing to bitter strife between
their parents, who are before us by way of the instant
appeals.
3. Through this order, we shall deal with the
challenge laid by the appellant-mother to the
judgment dated 23rd January, 2026 rendered by the
High Court of Delhi in MAT. APP. (F.C.) No. 279 of
2024, whereby the appeal preferred by the appellantmother
was dismissed and the judgment dated 1st
July, 2024 passed by the Family Court, Patiala House
Courts, New Delhi1 in Guardianship Petition No. 22
of 2021 instituted by the respondent-father under
Section 7 read with Section 25 of the Guardianship
and Wards Act, 1890 was affirmed.
4. By the judgment dated 1st July, 2024, the
learned Family Court had declared the father to be
the sole custodian of the minor children, with
visitation/interim custody rights to the mother. The
appellant-mother was further restrained from taking
the children out of the territorial jurisdiction of the
Family Court, Bengaluru except for taking them to
the residence of the respondent-father and bringing
1 Hereinafter, referred to as “Family Court”.
them within the jurisdiction of the Family Court at
Delhi.
5. By the impugned judgment, the High Court of
Delhi affirmed the judgment of the Family Court and
further rejected the application filed by the appellantmother
seeking relocation of the children to United
Kingdom where the appellant-mother is presently
working. The High Court gave the following directions
to govern the custody and the visitation rights of the
parties: -
“77. In light of the foregoing analysis, we proceed
to conclude the lis as under:
I. We hold that the Tender Years Doctrine cannot be
applied as a determinative principle in the present
case, and that the issue of custody must
necessarily be governed by the paramount
consideration of the best interests of the children.
II. The application seeking relocation is rejected,
and it is directed that the children shall not be
removed from the territorial jurisdiction of the
Indian courts.
III. Guided solely by the paramount consideration
of the welfare and best interests of the children,
and bearing in mind the need to preserve sibling
unity, emotional continuity, and balanced parental
presence, we direct that the custody of both minor
children shall vest with the Respondent-father.
IV. We are satisfied that separating the siblings
would be detrimental to their holistic growth and
emotional well-being. Their joint upbringing under
the care of the Respondent-father would best
subserve their long-term psychological, moral, and
4
emotional development, while also arresting the
adverse effects of prolonged parental alienation.
V. We clarify that the present adjudication is
confined solely to the issue of custody. If either
party seeks formulation, modification, or
enforcement of visitation or access arrangements,
it shall be open to the concerned party to approach
the learned Family Court, which shall consider
such request independently in accordance with
law, keeping the welfare and best interests of the
children as the paramount consideration.
VI. The conferment of custody upon the
Respondent-father shall not be construed as
diminishing the role or responsibility of the
Appellant-mother. Consistent with her stated
financial capacity, she is expected to continue to
contribute meaningfully towards the children’s
education, healthcare, and overall development.
Such contribution is an integral facet of
responsible coparenting and operates
independently of physical custody.
VII. To ensure the gradual restoration and
strengthening of parental bonds, particularly
between the father and the son, we direct that the
children shall continue to undergo counselling
under the supervision of qualified professionals at
an institution of repute, as may be identified by the
Respondent-father in consultation with the
Appellant-mother.
VIII. We emphasise that both parents shall
scrupulously ensure that the children are
insulated from hostility, denigration, or emotional
coercion against the other parent. The success of
the custodial arrangement lies not merely in legal
directions, but in the maturity and cooperation
with which the parents discharge their continuing
obligations towards their children.”
Being aggrieved, the appellant-mother is before
us.
5
Brief Facts
6. A chronology of the preceding facts and events
is necessary for adjudication of the issues and hence,
we proceed to narrate the same: -
7. The appellant and the respondent were married
on 26th September, 2011. The son ‘Master SSB’ was
born from the wedlock on 29th April, 2013. The
appellant-mother is an Academician by profession,
her specialisation being research in Computer
Science and Engineering, and she holds a Ph.D. in
Engineering from Jadavpur University, Kolkata.
8. The relations between the spouses deteriorated
in the year 2018, when the appellant was carrying a
pregnancy of four months. She claims to have been
physically assaulted by the respondent, compelling
her to leave the matrimonial home in difficult
circumstances, and thus, the son was left with the
respondent-father. On 9th September, 2018, the
appellant-mother claims to have retrieved the
custody of the minor son and since then, Master SSB
has continued to reside with appellant-mother/her
parents as the situation demands.
9. No sooner the appellant-mother had left the
matrimonial home, the respondent-father issued a
letter dated 11th September, 2018 seeking mutual
divorce. He also initiated a Guardianship petition2 in
a Court at Darjeeling which was later transferred to
Barasat.
10. The appellant-mother gave birth to the second
child, i.e., the daughter ‘Ms. DW’ on 24th January,
2019, some five months after she had left the
matrimonial home. Since then, the appellant-mother
continues to hold custody of the daughter, whereas
the son has remained in her continued custody from
9th September, 2018.
11. The respondent-father moved the High Court of
Calcutta by way of a Habeas Corpus Petition being
W.P. No. 20418 (W) of 2019, seeking restoration of
custody of the son, which was dismissed by the High
Court vide judgment dated 11th November, 2019.
12. Pursuant to the birth of the daughter, the
appellant-mother faced severe economic and social
pressures and made fervent efforts to secure
employment as and when the opportunities arose.
She initially secured a position at IIT, Jodhpur, and
relocated to Jodhpur with both the children. The
2 Guardianship Petition No. 22/2021.
appellant-mother has set up a case that the
respondent-father tried to sabotage her career
through spurious RTI requests and complaints to her
employer thereby escalating her hardships. Being
faced with the adverse consequences of the multiple
RTI applications, the appellant-mother thought it
prudent to relocate, and hence, between the years
2019 and 2021, she had to frequently change her
employment, first to the VIT University, Vijayawada
and then to Bengaluru. As per the appellant-mother,
these moves were necessitated by the need to provide
a suitable and secure environment for the children.
13. Numerous proceedings registered inter se
between the parties were consolidated in compliance
with the order dated 25th June, 2021, passed by this
Court in transfer petitions3 filed by the appellantmother.
Consequently, all custody and associated
disputes between the parties were transferred from
West Bengal to the Family Court, Patiala House
Courts, New Delhi.
14. The appellant-mother sought permission of the
Family Court to obtain passports for the children.
3 T.P. (C) No. 161-162 of 2020.
However, the said application was rejected vide order
dated 1st February, 2023, on an apprehension that
the children may be relocated abroad.
15. The appellant-mother thereupon challenged the
order of the Family Court before the High Court of
Delhi4. The High Court, vide interim order dated 17th
March, 2023 and subsequent order dated 9th May,
2023, permitted the appellant-mother to apply for
passports and thereafter visas, for the children, while
making it clear that this would not create any special
equity in her favour, nor would it entitle her to
relocate the children abroad without the specific
permission of the Court. The said order was
challenged by the respondent-father before this
Court by way of a Special Leave Petition.5 This Court
vide order dated 12th June, 2023 modified the High
Court’s order to the extent that the appellant-mother
would be entitled to relocate abroad with the children
only after obtaining leave of the High Court, though
she remained free to travel alone.
16. The High Court thereafter disposed of the
petition vide order dated 10th July, 2023, leaving it
4 C.M. (M) No. 301 of 2023.
5 SLP (Civil) No. 11436 of 2023.
open to the appellant-mother to move the Family
Court for permission to relocate the children to the
United Kingdom, with a further direction for
expeditious disposal.
17. The appellant-mother thereafter having secured
a well-paid employment as a lecturer at the
University of Hull, United Kingdom, drawing a salary
of approximately Rs. 3 Lakhs per month, moved the
Family Court seeking permission to relocate the
children to United Kingdom. Ample material was
placed before the Courts below to show that the
financial status of the appellant-mother was
significantly better than that of the respondentfather,
who admittedly draws a salary of only Rs.
17,000/- per month, working as a part-time Lecturer
at a University in West Bengal. However, the said
application was rejected by the Family Court vide
order dated 17th July, 2023, on various grounds, inter
alia, the contractual nature of mother’s U.K.
employment, purported concerns about currency
disparities, and a perceived risk of the children’s
alienation from the father.
18. The appellant-mother, being aggrieved by the
denial of permission to relocate the children, filed an
appeal6 before the High Court of Delhi. In the
meantime, owing to the continued strife between the
parties and the repeated litigations, the son started
exhibiting signs of aggression and hence, he was
taken to the National Institute of Mental Health And
Neuro Sciences7, Bangalore in the later part of the
year (October 2023 to be specific), where he made
disclosure of incidents indicating sexual abuse by the
father in the past. Acting on the psychologist’s
recommendations, the appellant-mother advised her
father to lodge a police complaint resulting in
registration of FIR No. 452/2023 dated 5th November,
2023 at P.S. Rajarajeshwari Nagar, Bangaluru under
the provisions of the Protection of Children from
Sexual Offences Act, 20128. The respondent-father is
nominated as an accused in the said FIR.
19. During the course of submissions, Mr. Zoheb
Hossain, learned senior counsel representing the
appellant-mother, has placed for our perusal a copy
of the chargesheet and also the communication dated
1st December, 2023, issued by the Associate
6 C.M. Main Petition No. 1147 of 2023.
7 For short, “NIMHANS”.
8 For short, “POCSO Act”.
11
Professor, Department of Child and Adolescent
Psychiatry, NIMHANS, Bengaluru, addressed to the
Police Inspector, Rajarajeshwari Nagar, Bangaluru,
in response to the latter’s request dated 7th
November, 2023.
20. It may be stated here that the proceedings
arising from the POCSO FIR registered against the
respondent-father are subjected to challenge before
the High Court of Calcutta by way of a quashing
petition being C.R.R. No. 4000 of 2024, and the said
petition is still pending adjudication.
21. The Family Court, vide judgment dated 1st July,
2024, allowed the Guardianship Petition filed by the
respondent-father, and declared him to be the sole
custodian of the minor children. Aggrieved thereby,
the appellant-mother preferred an appeal before the
High Court of Delhi which came to be dismissed by
the impugned judgment dated 23rd January, 2026.
22. The Courts below were persuaded to grant sole
custody to the respondent-father on the perceived
nomadic lifestyle of the mother as she had frequently
changed jobs and moved on to different locations
during the period between 2021 to 2023.
12
23. Being aggrieved, the appellant-mother is before
us by way of these appeals with special leave.
Proceedings before this Court
24. The appeals were initially taken up by this
Court on 13th February, 2026, on which date, we
directed learned counsel representing the appellantmother
to keep the parents, as well as the children
present before us for interaction in Chambers.
Extensive interaction took place on 18th February,
2026 and after interacting with the parties and
having regard to the sentiments expressed by the
children, this Court vide order dated 23rd February,
2026, stayed the effect and operation of the
impugned judgment of the High Court and the Family
Court. It is noteworthy that the son, ‘Master SSB’ was
very emphatic in his stance that he was least inclined
to be in the father’s company. The body language of
the child exhibited a morbid sense of fear even on the
thought of being with the father.
25. Thereafter, on a request made on behalf of the
respondent-father for visitation rights during the
summer vacations and in order to ensure that the
father is not totally alienated from the children’s
company, this Court vide order dated 19th May, 2026,
13
made the following arrangements granting visitation
rights of the minor children to the respondentfather:-
“6. In view of the submissions noted above, we
hereby make the following arrangements granting
visitation rights of the minor children to the
respondent-father.
I. The custody of both the minor children of the
parties, i.e., son Master S and daughter Ms. D,
shall be handed over to the respondent-father in
the premises of the Family Court, Bengaluru, on
each day commencing from 21st May, 2026, till 1st
June, 2026, while the children are enjoying their
summer vacations in the school.
II. The father shall be entitled to retain interim
custody of the children for a period of 6 hours
beginning from 10:00 AM.
III. An experienced counsellor duly identified by
the Family Court, Bengaluru, shall be assigned to
keep oversight during the period when the father
has interim custody of the children by virtue of this
order.
IV. The counsellor shall observe and determine the
comfort level of the children before the father is
permitted to take the children out of the premises
of the Family Court.
V. In case the counsellor observes any
hesitation/apprehension in either of the children,
he/she shall try to make the children comfortable
for the period of interim custody with the father.
VI. However, in case, despite all efforts being made,
the children are not amenable to proceed with the
father, the visitation rights shall be restricted to the
Family Court premises itself.
VII. In case the children become comfortable in the
company of the father, they shall be permitted to
14
leave the campus of the Family Court and spend
quality time with the father at any location/facility,
such as a mall, garden or similar facility.
VIII. The aforesaid arrangements for visitation
shall also be available to the respondent-father, if
he so desires, during the weekends of the month of
June.
IX. Neither the maternal grandparents nor the
paternal grandparents shall remain present during
the visitation periods allocated to the father.”
26. Pursuant to the aforesaid order, the Family
Court, Bengaluru, was directed to procure and
forward to this Court, in a sealed envelope, a report
from the concerned counsellor(s) regarding the
observations made during the visitation sessions
between the respondent-father and the two minor
children.
27. Summary of the counsellor’s report(s) is
relevant and hence, the same is extracted
hereinbelow: -
“I. First Report - Counsellor’s Day-wise Findings
(21st May, 2026 to 30th May, 2026)
Day 1 (21st May, 2026): The children initially
appeared settled but remained largely silent
despite the father’s attempts to engage them. The
son repeatedly rested his head on the table and
covered his face. He expressed that he did not want
to sit with the father; the daughter indicated that
she would leave if his brother did. The daughter
interacted more freely with the counsellor and
15
spoke about playing with her brother and going out
with her parents. The father attempted interaction
through conversation, photographs and games, but
the children remained largely disengaged.
Day 2 (22nd May, 2026): The son became agitated
and violent, shouting and banging chairs/tables,
and was difficult to calm. He attempted to leave the
room and expressed anger towards his mother,
stating that he could control his anger only in her
presence. The grandfather informed the counsellor
that he was difficult to manage and was undergoing
medical treatment. The daughter remained
comparatively calm but expressed preference for
being with her mother. The son showed limited
willingness to interact with the father and later
refused to apologise to him.
Day 3 (23rd May, 2026): The children appeared
more settled and engaged in drawing and reading.
The father attempted interaction through games,
conversation and photographs, but direct
interaction remained limited. During lunch also,
the father attempted to engage with the children
but was met with limited response from them.
Day 4 (24th May, 2026): The father brought board
games and played a children's movie, attempting to
engage the children. The session was recorded as
normal and routine, with the children primarily
reading and engaging in activities. During lunch,
the children interacted with the father regarding
food and possible outings.
Day 5 (25th May, 2026): The father raised an
objection regarding the presence of the grandfather
and advocate. The counsellor explained her limited
role as facilitator. The children accepted craft
material brought by the father and engaged in
drawing/craft activities. The father played Tom &
Jerry and attempted interaction. The session was
otherwise recorded as normal and routine.
16
Day 6 (26th May, 2026): The father again raised
the issue of the grandfather and advocate’s
presence. The children engaged happily in craft
work, drawing and reading. The son occasionally
troubled his sister but stopped when asked by the
father. The father continued attempts to engage
them through rhymes and other activities; the
session remained routine.
Day 7 (27th May, 2026): The children remained
engaged primarily in craft, drawing and reading.
The son occasionally troubled his sister but
stopped when asked. The father participated in
activities, played Hindi film songs and engaged in
drawing. The session was recorded as normal and
routine.
Day 8 (28th May, 2026): The father explained the
significance of Eid and engaged the children
through craft, drawing and reading. He also read a
storybook and arranged lunch for them. The
children informed the counsellor, in the father’s
presence, that their school would reopen on 1st
June and expressed reluctance to attend visitation
after reopening.
Day 9 (29th May, 2026): The children continued
engaging in craft, drawing and reading and
appeared settled. The father interacted through
songs and photographs and continued attempting
to engage them. The son sustained a minor injury
after a fall. Although the father attempted to assist,
the son did not accept his assistance.
Day 10 (30th May, 2026): The children remained
engaged in craft, drawing and reading. The father
intervened when the son troubled his sister and
continued participating in their activities. He
arranged lunch according to the children’s
preferences. The session remained routine.
17
II. Second Report – Weekend meeting on 6th and
7th June, 2026
The second report concerns a six-hour
visitation session in the 1st weekend of June, 2026
pursuant to the Family Cour’s arrangement. The
session was attended by Dr. Shivani Gusain,
Senior Resident and Psychiatric Social Worker, and
Ms. Abhirami G. Menon, Psychiatric Social Work
Department, NIMHANS, who were deputed to
facilitate the children’s interaction with their
father.
The counsellors first introduced themselves
and explained that the session was intended to
provide a comfortable environment for the children.
The children were initially reluctant to
enter/interact in the counselling setting. The son
expressed a strong aversion towards interaction
with the father and indicated that such interaction
caused discomfort or distress. The daughter
repeatedly requested to leave the session and
return home.
At about 10:30 a.m., the son requested to
leave the premises. The daughter became fearful
and repeatedly asked to be taken home, stating
that she felt frightened. The children were
subsequently provided reassurance and support.
The son initially engaged in solitary reading, while
the daughter engaged in a physical activity
involving a fictional book. With supportive
engagement, the children gradually began
participating in the activities. When the father
entered carrying books and offered them to the
children, they continued to remain reluctant to
interact directly with him. Attempts by the
counsellors to facilitate communication between
the father and children were described as having
limited effectiveness, although the children
appeared comfortable with the counsellors.
18
After lunch, the children participated in playbased
activities. They spoke about their
experiences of spending Saturdays and Sundays
attending court-related proceedings and meeting
their father, describing these experiences as
physically and emotionally exhausting. They also
spoke about their mother and expressed that her
presence was significant to them.
At approximately 3:00 p.m., the father
attempted to initiate conversation with the
daughter. Both children remained reluctant and
explicitly indicated that they did not want the
father to come back into the room. The father
subsequently exited the room. The children later
continued participating in structured games and
supportive activities with the counsellors.
Observations recorded by the Counsellors:
I. Both children demonstrated strong
reluctance to interact with their father,
consistently avoiding engagement. They
exhibited avoidance behaviour, including
attempts to leave the room and requests to
return home when the father was present.
II. The daughter displayed fear and emotional
distress, including crying, verbal
expressions of fear and requests to return
home.
III. The children frequently sought comfort
and reassurance from each other,
particularly from the elder sibling.
IV. The children spoke about their frequent
Court visits and meetings with their father
as physically and emotionally exhausting.
V. The father’s attempts to establish
communication through conversation,
books, toys and refreshments were not
reciprocated by either child.
VI. The children showed greater comfort and
participation when engaged in supportive,
19
structured and non-threatening activities
facilitated by the counsellors.
VII. The children expressed a preference to
remain with their mother and indicated
reluctance to interact with their father.”
28. Apparently, thus, during the course of
interaction by this Court, as well as during the
visitation periods wherein the respondent-father was
allowed access to the children in compliance of the
order dated 19th May, 2026, one indisputable fact
which has emerged is that the son has shown
extreme reluctance to be in the company of the
father. The daughter who was born after the
appellant-mother left the matrimonial home, has
hardly interacted with the respondent-father except
during the temporary visitation period, pursuant to
the order dated 19th May, 2026.
Submissions on behalf of the appellant-mother
29. Mr. Zoheb Hossain, learned senior counsel
appearing for the appellant-mother submitted that
the appellant-mother had been the primary caregiver
of both minor children for several years. The son had
remained in her custody ever since September, 2018,
while the daughter had been under her care and
protection since her birth in January, 2019. The
20
children had consequently developed a strong
emotional bond with the mother, and their
established living arrangement ought not to be
disturbed. It was further submitted that the
appellant-mother had left the matrimonial home in
2018 under compelling circumstances which she had
duly explained before the Courts below, and had
thereafter made sustained strenuous efforts to
secure employment and provide a stable and secure
environment for the children. He urged that branding
these efforts of the mother to be exhibiting nomadic
lifestyle was absolutely unjustified.
30. Mr. Hossain further submitted that the
appellant-mother’s repeated changes in employment
were not voluntary, but were necessitated by
circumstances attributable to the conduct of the
respondent-father. In particular, it was contended
that the numerous RTI applications filed by the
respondent against her during her tenure at IIT,
Jodhpur ultimately resulted in the appellant leaving
her job at IIT Jodhpur and, compelling her to seek
employment elsewhere in order to sustain herself and
provide for the children.
21
31. It was submitted that, notwithstanding that the
appellant-mother had not been granted permission to
relocate, she had continued to make considerable
efforts, as a working mother employed in the United
Kingdom, to balance her professional commitments
with her desire to be with the children and spend time
with them as and when possible. It was urged that
the denial of permission to relocate had, in effect,
deprived the children of the regular custody and
companionship of their primary caregiver i.e., the
appellant mother.
32. Mr. Hossain contended that the children’s own
wishes as noticed during Court interactions and the
observations made by the counsellors during the
visitation period with the father are the most relevant
considerations in determining their welfare and
future custody arrangements. In particular, when the
High Court interacted with the children in Chambers
on 9th May, 2023, it noticed that they exhibited a
clear reluctance to be with the father and preferred
to remain under the care of the appellant-mother.
The subsequent counsellors’ reports prepared during
the visitation arrangements provided by this Court
also indicate the son’s extreme reluctance to be in the
22
company of the father. It was therefore urged that the
wishes and emotional comfort of the children be given
due weight while determining their custody. An
experiment to grant custody to the father on the
premise of parental alienation may cause
irretrievable damage to the mental equilibrium of the
son who has already undergone counselling sessions
to calm down his aggressive behaviour.
33. Mr. Hossain placed before the Court the gradesheets
of the children for their current academic
session, submitting that the children are excelling in
their present school and remain focused and
academically sound. It was urged that their academic
performance indicates that in the present custody
arrangement prevailing under the stay granted by
this Court, both the children are fully settled in their
existing educational environment and that their
studies have continued satisfactorily despite the
ongoing litigation and emotional strain.
34. Learned senior counsel further submitted that
the allegations of sexual abuse disclosed by the son
during his examination at NIMHANS could not be
brushed aside or characterised as motivated or
fabricated at the stage of deciding custody rights. The
23
spontaneous disclosure made by the child before the
psychiatrist at NIMHANS led to the registration of the
POCSO FIR, and a chargesheet had thereafter been
filed against the respondent-father upon
investigation. It was submitted that the criminal
proceedings were pending adjudication and that the
observations made by the High Court casting doubt
upon the veracity of the allegations were premature
and capable of prejudicing the pending proceedings
even without considering the stance of the minor son.
In these circumstances, entrusting custody of the
children to a person facing prosecution for such grave
charges would not be conducive to the welfare and
best interest of the children.
35. Lastly, on the question of relocation, Mr.
Hossain submitted that the appellant-mother had
secured employment as a Lecturer at the University
of Hull, United Kingdom, with substantially better
financial prospects, and has made arrangements for
the children’s education and upbringing there. He
submitted that the proposed relocation would provide
the children with greater financial stability, security,
better educational opportunities and a stable
environment under the protective umbrella of the
24
mother and would be more conducive to their overall
development. It was thus urged that the proposed
relocation deserves to be favourably considered from
the standpoint of the children’s overall welfare,
educational opportunities, and financial security,
rather than being discarded merely because the
children would be residing outside India thereby
causing alienation for the father.
Submissions on behalf of the respondent-father
36. Shri Shyam Divan, learned senior counsel
representing the respondent-father, during the
course of arguments, presented before us the
financial status of the parents of the respondentfather,
who are both pensioners receiving collective
pension to the tune of Rs. 1 lakh, and submitted that
the father of the respondent owns a house with
sufficient accommodation.
37. Referring to these facts, Shri Divan urged that
the financial disparity between the parents cannot be
the sole consideration for deciding the custody of the
children. It was urged that the respondent-father is a
highly qualified professional and was earlier working
with a prominent multinational company, drawing a
handsome salary; however, owing to the frivolous
25
complaints filed by the appellant-mother, he lost his
job, and the appellant-mother, being responsible for
his financial distress, cannot take advantage of her
own wrongs so as to deprive the respondent-father of
custody of the children.
38. Shri Divan further urged that this is a clear case
of parental alienation, in that the appellant-mother
has taken calculated measures to alienate the
children from the company of the respondent-father,
so much so that the son’s mind has been poisoned to
such an extent that he does not even desire to see the
face of his own father, with whom he was happily
residing till the year 2018. It was further urged that
if the children are permitted to relocate outside India,
they will lose the cultural ethos and values of a
Bengali family, in addition to the risk of them
permanently settling abroad and hence there is no
justification for permitting relocation of the children
to the United Kingdom.
39. Shri Divan also emphasised upon the
observations of the High Court of Delhi expressing its
reservations regarding the POCSO FIR, and referred
to certain dates and events in an attempt to persuade
the Court that the FIR is nothing but a bundle of lies,
26
lodged with the intent to wreak vengeance upon the
respondent-father aimed at depriving him of custody
of the children. He further submitted that the
quashing petition filed by the respondent-father is
under consideration before the High Court of
Calcutta, wherein an order directing no coercive
steps had been passed. Thus, it was contended that
mere filing of the chargesheet cannot adversely affect
the father’s right to seek custody of his minor
children.
40. Shri Divan further urged that past record of the
mother’s employment is clearly indicative of her
indecisive disposition. The mother had frequently
changed jobs and kept on hopping from one place to
another in India. The children were accordingly
dragged along to the various stations where the
mother shifted base on the premise of getting jobs.
He contended that the finding of the Courts below
that the mother led a nomadic life thereby, creating a
situation where the children were not allowed to
settle and pursue a stable academic career is
absolutely justified. As per Shri Divan this nomadic
conduct of the mother by itself disentitles her to claim
sole custody of the children.
27
41. On these submissions, Shri Divan sought
dismissal of the appeal and affirmation of the orders
passed by the Courts below granting sole custody of
the children to the respondent-father.
Analysis
42. We have heard and considered the submissions
advanced by learned senior counsel for the parties
and have also gone through the impugned judgment
and the material placed on record.
43. We have also carefully perused communication
dated 1st December, 2023, issued by NIMHANS,
Bengaluru, the report of the counsellors during the
interim visitation periods, and the chargesheet filed
against the respondent-father.
44. Suffice it to say that the appellant-mother left
the matrimonial home while carrying a pregnancy of
four months. If everything was going well in the
matrimonial relationship, as contended by the
respondent, there could have been no reason for the
appellant-mother to take the abrupt decision of
leaving her five-year-old son behind and moving out
of the matrimonial home. It is quite obvious that the
appellant-mother was not desirous of washing dirty
linen in public and exposing the family acrimony in
28
public domain, hence, she quietly left the
matrimonial home without raising much fuss about
the events that triggered such drastic decision. The
fact remains that, after leaving the matrimonial
home, the appellant-mother has been trying to
cement her position in the academic world and has
pursued jobs in different institutions. This attempt of
the appellant-mother has been branded as a
“nomadic life” by the Courts below, which, in our
opinion, is absolutely unjustified and far removed
from reality.
45. Having taken the conscious decision to leave the
matrimonial home, the appellant-mother was rightly
concerned for the wellbeing of her son and the
subsequently born daughter, and was thus bound to
make efforts to secure a respectable, well-paying job
compatible with her educational qualifications so as
to ensure a good future for herself and her children.
The respondent-father, on the other hand, appears to
have channeled his energies into litigation and into
hounding the appellant-mother through numerous
RTI applications. It was argued by Mr. Hossain that
more than 100 such applications were filed by the
respondent-father when the appellant-mother was
29
working at IIT, Jodhpur. These hindrances forced the
appellant to leave the job of IIT, Jodhpur and she had
to relocate. We feel that this conduct of the
respondent-father clearly exposes his vindictive
nature. It is pertinent to note that, even though the
respondent-father draws a meagre salary of Rs.
17,000/- per month, he has nonetheless been held
entitled to exclusive custody of both the children,
without any consideration being given to the
consequences of his weak economic standing. The
pension being drawn by the respondent’s parents
could not have been treated as filling this apparent
gap when the mother has shown a better financial
standing achieved through her own efforts.
46. Having appreciated the submissions advanced
and the material available on record, the following
undisputed facts emerge:-
(i) The financial standing of the appellant-mother
which she has achieved through her own efforts
is manifolds than that of the respondent-father
who draws a mere Rs. 17,000/- per month as
salary whilst the appellant-mother, despite
facing the spate of litigation and RTI
applications, has simultaneously pursued her
30
career and secured better prospects for the
children, the respondent-father seems to be
channelising his entire energy and efforts into
the litigation rather than securing better career
for himself so that he can meet the financial
demands of the children’s future education.
(ii) The disclosure made by the son before the
Psychiatrist, NIMHANS led to the lodging of the
FIR, pursuant to which a chargesheet has been
filed after investigation. The observations made
by the High Court on the veracity of the
allegations made in the FIR were absolutely
uncalled for, inasmuch as the FIR was
registered following disclosure by the child. The
maternal grandfather of the child merely
conveyed the factum of this disclosure in his
complaint to the police and hence any comment
on the veracity of the FIR tantamounts to an
unwarranted observation upon the veracity of
the complaint lodged consequent to the
disclosure made by the child to the
counsellor/psychiatrist.
47. Much stress was laid by Shri Divan on the
observations recorded in the counsellor’s report on
31
the last date of visitation time granted to the
respondent-father. Shri Divan argued that over a
period of time, the hostility between the father and
the children receded, and the father was able to share
a meal with the children in the same room.
48. However, the said submission need not detain
us for a moment. Such conduct on the part of the
children is not conclusive of any genuine
improvement in their relationship with the father. It
is quite possible that owing to the consistent and
persistent efforts of the respondent-father and
considering the fact that the visitation period granted
by this Court was coming to an end, the children may
have relented a little bit. This one-off incident is, in
no way, conclusive of improvement in the
relationship between the father and the children.
49. The fervent effort made by Shri Divan to project
that the respondent-father and the paternal grandparents
of the children have a combined financial
status which would be sufficient to take care of the
education and other needs of the children, is also
unconvincing. The pension being received by the
parents of the respondent-father cannot, in any
manner, be considered as having bearing on the
32
financial needs of the children in their educational
pursuits. Meeting these requirements is the primary
duty of the parents themselves and the income of the
paternal grandparents and that too the pensionary
receipts cannot be treated as supplementing the
father’s obligations.
50. As has been noted above, the respondent-father
has not made any endeavour to improve his financial
standing by looking out for better prospects and has
instead, continued to pursue litigation. This is a very
important factor of the case which we cannot lose
sight of. The efforts made by the appellant-mother
even while contesting the multi-pronged litigation to
pursue different jobs and thereby ensuring financial
security for herself and for the children is indeed
appreciable and weighs heavily in her favour for
claiming custody of the children. The mother’s efforts
exhibit her resolve and committed approach for
securing the children’s future prospects.
51. The contention raised by Shri Divan that if the
children are relocated to United Kingdom, they would
risk losing their cultural ethos and values of a
Bengali family, is also unacceptable for the simple
reason that there cannot be any presumption that by
33
mere relocation to another country, the children
would lose their cultural values. The appellantmother,
who herself hails from a Bengali family, may
reasonably be expected to nurture her children in a
manner which would ensure that the children
continue to value their roots and cultural ethos of a
Bengali tradition.
52. Further, the High Court of Delhi, while deciding
the guardianship appeal has made certain reflections
and observations on the merits of the prosecution
emanating from the POCSO FIR, which, in our
opinion, are absolutely unjustified. At paragraph 53
of the impugned judgment, the High Court held that
the allegations of sexual abuse levelled by the
appellant-mother against the respondent-father
appear to be clearly motivated and in the nature of a
counterblast to the proceedings initiated by the
respondent-father. We are unable to countenance
this observation. The FIR was lodged pursuant to a
spontaneous disclosure made by the boy to the
psychiatrist at NIMHANS, who was engaged to
examine and pacify the aggressive tendencies
exhibited by the boy. Few discrepancies in dates and
sequence of events which were sought to be
34
highlighted by Shri Divan during the course of
hearing are insignificant for the present controversy.
53. We are of the firm opinion that the observations
made by the High Court in the impugned judgment
on the veracity of the POCSO FIR were out of place,
uncalled for and premature. The FIR itself being
subjected to challenge before the High Court of
Calcutta, the High Court of Delhi ought to have
refrained from making comments on the veracity
thereof. Such findings would cause grave prejudice to
the prosecution initiated on the basis of the
statement made by the child victim, and hence, the
observations made by the High Court of Delhi in the
impugned judgment in this regard deserve to be, and
are hereby expunged and shall not be taken into
consideration in the course of proceedings emanating
from the said FIR.
54. Once the police has filed a chargesheet after
investigation in respect of allegations constituting an
offence under the POCSO Act against the
respondent-father, granting custody of the child to
the respondent-father would be totally unwarranted
and unjustified. Needless to say, the primary
35
consideration while deciding the issue of custody has
to be the best interest of the children.
55. In this regard, we may gainfully refer to Section
3(iii), (iv), (vi) and (ix) of the Juvenile Justice (Care
and Protection of Children) Act, 20159, which lay
down the general principles of care and protection of
children as under: -
“3. General principles to be followed in
administration of the Act.— The Central
Government, the State Governments, the Board,
and other agencies, as the case may be, while
implementing the provisions of this Act shall be
guided by the following fundamental principles,
namely: —
...
(iii) Principle of participation: Every child shall have
a right to be heard and to participate in all
processes and decisions affecting his interest and
the child's views shall be taken into consideration
with due regard to the age and maturity of the
child.
(iv) Principle of best interest: All decisions regarding
the child shall be based on the primary
consideration that they are in the best interest of
the child and to help the child to develop full
potential.
…
(vi) Principle of safety: All measures shall be taken
to ensure that the child is safe and is not subjected
to any harm, abuse or maltreatment while in
contact with the care and protection system, and
thereafter.
...
9 For short, “Juvenile Justice Act”.
36
(ix) Principle of non-waiver of rights: No waiver of
any of the right of the child is permissible or valid,
whether sought by the child or person acting on
behalf of the child, or a Board or a Committee and
any non-exercise of a fundamental right shall not
amount to waiver.”
56. These principles, read together, make it clear
that the son’s disclosure and his safety cannot be
subordinated to the father’s claim for custody
particulars when the criminal case is still pending.
Under no circumstances, the respondent-father, as
long as he is facing prosecution, can be considered to
be a person entitled to custody of the children. Such
a course of action, apart from being contrary to the
solemn object of the Juvenile Justice Act, may also
lead to the prosecution being frustrated, inasmuch
as, were the custody of the son to be handed to the
respondent-father, the possibility of the son giving a
free and fair deposition in those proceedings would
virtually be negligible.
57. We are of the considered view that, even
assuming the respondent-father succeeds in the
quashing petition pending before the High Court of
Calcutta and the criminal proceedings arising out of
the POCSO FIR are quashed, the Courts would have
to remain circumspect in assessing the
circumstances and background in which the
allegations came to be levelled by the son against the
respondent-father. The subsequent outcome of the
criminal proceedings, by itself, cannot efface the
circumstances in which the disclosure was made or
render the child’s apprehensions wholly irrelevant for
the purposes of determining his welfare and custody.
58. Mr. Zoheb Hossain, learned senior counsel
representing the appellant-mother pointed out that
in absence of the mother who has to travel to United
Kingdom for her job, the daughter keeps on drawing
the sketches of her mother and expresses prayers to
God that she should be joined in the protective
umbrella of the mother.
59. We can quite visualise the plight of the children
who have been deprived of the custody of both the
parents because of the ongoing litigation continuing
for more than 7 years.
60. The appellant-mother having secured a
reasonably well-paying respectable teaching job in
the United Kingdom and the respondent-father
having been disentitled to receive custody of the
children in view of his facing prosecution and having
38
regard to his financial status, we feel that negating
the prayer of the appellant-mother to relocate the
children to United Kingdom, would further aggravate
the complete parental alienation of the children who
are in their formative years.
61. The appellant-mother, who was present in the
Court during the course of hearing, submitted that
she has already received an assurance for admission
of the children in a good school in the United
Kingdom, and that she will be personally responsible
for the upkeep and upbringing of the children while
they are in her custody. She has also undertaken that
she shall bring back the children to India as and
when required
Directions
62. In this background, we pass the following
directions:-
(i) The stay on the effect and operation of the
impugned judgment granted by this Court vide
order dated 23rd February, 2026 is made
absolute and shall continue to operate till the
disposal of the appeals.
(ii) The prayer made by the appellant-mother
during the course to hearing to be allowed to
39
take the children to United Kingdom and to get
them admitted to school there, is considered
justified in the facts and circumstances noted
above.
(iii) The appellant-mother is accordingly, for
the present, permitted to take the children to
United Kingdom and get them admitted to a
good school. The details of the children’s
schooling in United Kingdom shall be placed on
record with an affidavit of the appellant-mother
within six weeks from today.
(iv) The appellant-mother shall furnish an
undertaking that, as and when directed by this
Court or any other Court, she shall produce
the children before such Court.
(v) The quashing petition filed by the
respondent-father, pending before the High
Court of Calcutta, shall be decided
independently and on its own merits without
being influenced by the observations made in
the impugned judgment passed by the High
Court of Delhi and/or by any observations
made in this order.
40
63. The appeals shall be listed for hearing in
January, 2027.
….……………………J.
(VIKRAM NATH)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
SEPTEMBER 23, 2026.
No comments:
Post a Comment