Supreme Court: The court must consider the issue of child's stability and continuity while deciding child custody matters

 Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had shifted from Chandigarh some time back. Earlier she was teaching in some school at Calcutta. Admittedly, she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and studying in Allahabad in a good school and stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad. Having interviewed Satyajeet in our chambers for some time, we find it difficult to accept the stand of the appellant that the father does not have sufficient time or resources to look after the welfare of the child. We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him. It is also significant to note that during the course of hearing on one of the dates, when we had not yet interviewed Satyajeet, we had suggested that it would be better if the child could stay with his mother for some more time. However, upon hearing us, he started crying and whining and, showed reluctance to go with the mother. Watching his reaction, we dropped the proposal. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that child's interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. {Para 17}

Key Pillars of the Ratio:

• Welfare Over Legal Rights: Statutory provisions (such as Section 17 of the Guardians and Wards Act, 1890 or Section 13 of the Hindu Minority and Guardianship Act, 1956) cannot overrule what is best for the child's psychological and physical well-being. 
• Stability and Continuity: A child's stability and security are essential for the full development of their talent and personality. Dislocating a child from an established, healthy environment where they have grown up can cause emotional strain and impede their development. 
• Child's Preference: The preference of a mature minor who is old enough to form an intelligent opinion must be given due weight by the court. 
• Financial Position vs. Emotional Environment: While financial resources play a role, they cannot be the sole consideration. A better emotional, social, and educational environment overrides pure financial superiority.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3500 of 2008

Decided On: 12.05.2008

Mausami Moitra Ganguli Vs. Jayant Ganguli

Hon'ble Judges/Coram:

C.K. Thakker and Devinder Kumar Jain, JJ.

Author: Devinder Kumar Jain, J.

Citation: MANU/SC/7671/2008,(2008) 7 SCC 673.

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Bombay HC: What criteria the court should apply while deciding issue of temporary custody of child in domestic violence Act proceeding?

At present, there is nothing to suggest that the welfare of the child is at peril, if child lives with the father. The matter can also be viewed from the angle of stability and consistency of the living of the child. While dealing with the application for interim custody, generally the custody shall not be disturbed without adequate reasons. It is essential to see the impact of frequent change of custody from one person to another. One has to bear in mind that the child is living with father for the period more than 1 year. The record indicates that during pendency of this petition, child was interviewed by Dr. Mrs. R.S. Sirpurkar as a Mediator who in turn informed that the child dislikes her mother and her reaction towards mother is adverse. During pendency, limited custody access was given to the mother. The report of protection officer dated 02.05.2022 and 24.05.2022 indicates that the child showed reluctance to meet her mother during visitation hours.

13. The trauma that the child is likely to experience in the event of change of custody, pending proceeding, shall have to be necessarily borne in mind. I am conscious about tender age and gender of the child, but still, I feel that at this interim stage of the proceeding, it would not be appropriate to interfere in the existing state, especially on the background of prolonged residence of child with father.

14. The report of Mediator as well as Protection Officer prima facie assures that the child is comfortable with his father. Thus, considering the peculiar facts and especially the child is in custody of petitioner/father admittedly from 27.02.2021, change in custody in absence of cogent material that too at this interim stage would be against the welfare and mental set up of the child.

15. Having regard to the current situation, it is in the interest of minor to allow to prevail the situation for some time i.e. upto final adjudication of the proceeding by Magistrate. Considering the nature of dispute, I find it appropriate to direct the learned Magistrate to dispose of the petition for custody as expeditiously as possible and in any event within three months from the date of the receipt of this order.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 52/2022

Decided On: 17.06.2022

Swapnil Bhajandas Kamble Vs. Manisha

Hon'ble Judges/Coram:

Vinay Joshi, J.

Citation: MANU/MH/1942/2022,2002 All M.R. (Cri) 2296

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Supreme Court permitted a mother to relocate her two minor children to the United Kingdom, while denying custody to the father who is facing prosecution under Pocso Act

 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.

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Guidance Note for District Judges and Family Court Judges on Deciding Child Custody Disputes

 

Overview

In child custody disputes, the governing principle is that the welfare and best interest of the child is the paramount consideration, overriding the competing claims and legal rights of the parents. Indian courts have repeatedly held that custody proceedings are not to be treated as ordinary adversarial civil trials and that the court is not bound by strict rules of evidence or procedure in the same manner as in regular civil litigation.

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What is segmented custody with regard to child custody?

 Segmented custody, also commonly referred to as alternating custody or divided custody, is a child custody arrangement where the child resides exclusively with one parent for an extended period, and then exclusively with the other parent for a subsequent, similarly extended period. 

Unlike joint physical custody, where the child moves back and forth between parents regularly (e.g., weekly or every few days), segmented custody involves longer, uninterrupted blocks of time, such as months or an entire school semester.

Key Aspects of Segmented Custody

• Exclusive Responsibility: During their designated period, the parent with custody acts as the sole primary caregiver, managing all daily needs, school routines, and activities.
• Alternating Schedule: The parents take turns having custody based on a schedule approved by the court, such as the mother having custody for the first half of the year and the father for the second, or splitting by academic semesters.
• Long-Term Structure: The goal is to provide stability by reducing frequent travel or switching environments for the child, providing them with a "home" atmosphere with each parent, even if it is not at the same time.
• Visitation Rights: During a parent’s "off" period, they usually maintain visitation rights, although they are not the primary custodian at that time.

Differences from Other Custody Types

• vs. Joint Physical Custody: In joint custody, children move frequently, keeping them in constant touch with both parents. In segmented custody, they may not see the other parent for several months.
• vs. Split Custody: Split custody applies when there are multiple children and they are divided between parents (e.g., one child with the mother, one with the father). Segmented/Alternating custody refers to the same child rotating between parents.

When is Segmented Custody Used?

Courts may consider this arrangement in specific situations, such as:

• Long Distance: When parents live in different cities or states, making weekly travel impractical.
• Parent Work Schedules: When one parent has high-demand work periods that rotate, such as jobs that require long-term travel.
• Child’s Age/Needs: If the child is older and needs stability in schooling for one semester, then can spend a long summer with the other parent.

Advantages and Disadvantages

• Pros: Allows both parents to experience full-time parenting, reduces the "suitcase life" for children, and encourages a strong bond with both parents over extended, quality time.
• Cons: Can create a long separation from one parent, which may cause emotional strain on younger children, and requires a high level of cooperation to maintain school/medical consistency.

Segmented custody is often chosen by parents who want to stay deeply involved in the day-to-day upbringing of their children but are forced by circumstances to live apart, allowing the child to have a "home" with each of them.

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Allahabad HC: Ordinary residence of child for the purpose of S 9 of Guardian and wards Act is mixed question of law and fact and it can not be decided in application for rejection of plaint

 In the instant case, the factum of 'ordinary residence' of the minor is a disputed question of fact and thus, the question whether the Court at Ghaziabad has territorial jurisdiction to entertain the petition under Section 25 of the Guardians and Wards Act, 1890 is a mixed question of law and fact. The aforesaid question cannot be determined without holding an enquiry into the factual aspects of the controversy and without framing a distinctive issue in this regard. The scope of scrutiny at the stage of consideration of an application under Order VII, Rule 11 of Civil Procedure Code 1908 is confined only to the averments made in the petition. Thus, the question whether the Court has territorial jurisdiction being mixed question of law and fact cannot be decided by way of an application under Order VII, Rule 11 of the Civil Procedure Code, 1908. {Para 31}

 IN THE HIGH COURT OF ALLAHABAD

First Appeal No. 373 of 2024

Decided On: 15.05.2024

Dheeraj Vs. Chetna Goswami

Hon'ble Judges/Coram:

V.K. Birla and Syed Qamar Hasan Rizvi, JJ.

Author: Syed Qamar Hasan Rizvi, J.

 Citation: 2024:AHC:87786-DB, MANU/UP/1908/2024

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Custody Law Crossroads: Why DV Act Can’t Replace Guardianship Proceedings

 Imagine a mother seeking to take her child abroad for over two years for studies or work—but doing so without the father’s consent and through a petition under the Domestic Violence Act (D.V. Act). Sounds like a tricky situation? The recent court ruling has made it clear why such cases can’t be decided lightly or through interim orders.

What Is Section 21 of the Domestic Violence Act?

Section 21 is all about temporary custody—a quick, protective measure given by a Magistrate to keep a child safe during ongoing domestic violence proceedings. It’s designed to step in fast, not to decide complex long-term custody battles.

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Important provisions of Guardian and Wards Act 1890

Core Definitions (Section 4)

Minor: Person who has not attained majority under Indian Majority Act 1875

Guardian: Person having care of minor's person, property, or both

Ward: Minor for whom there is a guardian

District Court: Includes High Court exercising ordinary original civil jurisdiction

Court's Power to Appoint Guardians (Section 7)

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Whether child welfare committee under Juvenile justice Act can hand over custody of child to mother when the matter is pending before the Family Court?

 5. In a case of identical nature, a Division Bench

of this Court in Shaiju S and others v. Child Welfare

Committee and others [2021 (6) KHC 573] has held as

under:

“11. We must at the outset note that the Committee

committed grave error in ordering custody to the mother

when the matter is pending before the Family Court. The

Committee ought to have restrained from entertaining a

dispute which is a subject matter of lis between the

parties. We must also note that wrangling between the

spouses in regard to custody will not confer any power on

the Committee to interfere in such matters and give

custody to one of them. Going by various provisions,

including Section 2(14)(v) of the Act, the Committee's role

would arise only when none of the parents is in a position

to take care or protect the child or children. The

Committee can step into at a stage to protect a child when

parents are not in a position to protect the child. The role

of the Committee commences from the stage where both

parents are not in a position to take care and protect the

child. The parens patriae principle to intervene is to

protect the child and act as a parent of the child when

parents fail to take care and protect the child. So also is

the matter of dispute between spouses. The Committee

would be justified in interfering with the custody of child

with one of the parent, if that parent is incapacitated or

failed completely to take care of the child.

12. The Committee cannot voluntarily interfere with

the custody of the children except on a circumstance

where it forms an opinion that the child requires care and

protection. Merely because the children are isolated from

the mother by the father, Committee cannot interfere with

the legal custody of the children by the father”.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 35830 OF 2024

SHITHU KS Vs  CHAIRPERSON, CHILD WELFARE COMMITTEE,

PRESENT

 MR.JUSTICE C.S.DIAS

Dated this the 12th day of December, 2024

Citation: 2024:KER:94086.

Read full Judgment here: Click here. 

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Kerala HC: Shuttling Child Between Two Forums Causes Inconvenience And Is Detrimental To Child's Welfare

 On scrutinizing the averments in

O.P.No.411/2024, it shows that that the 3rd respondent

does not have a case that his child is a child in need of

care and protection so as to attract the provisions of the

Juvenile Justice (Care and Protection of Children) Act,

2015. Even otherwise the respondent in the petition is

the biological mother of the child. Furthermore, the

filing of a second petition for an identical relief is

unwarranted because the Family Court is the Court of

competent jurisdiction to decide on the interim and

permanent custody of the child. The Family Court has

concurrent jurisdiction with the 1st respondent in matters

concerning the welfare of children. Since the 3rd

respondent has elected the Family Court, his subsequent

endeavour to approach the 1st respondent for identical

reliefs seems to be with an intention to harass the

petitioner. Unmindful of the above legal question, the 1st

respondent has ordered the 2nd respondent to produce

the child before them, when the matter is sub-judice

before the Family Court. {Para 4}

6.  Shuttling the child between the two

Forums will cause inconvenience to the child and is

detrimental to its paramount welfare.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 35830 OF 2024

SHITHU KS Vs  CHAIRPERSON, CHILD WELFARE COMMITTEE,

PRESENT

 MR.JUSTICE C.S.DIAS

Dated this the 12th day of December, 2024

Citation: 2024:KER:94086.

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Bombay HC: Mere desire of a child at a tender age is not a sole factor to be considered for deciding child custody

In view of the above, now it is settled that it is the

interest of the children that needs to be considered. Mere desire

of a child at a tender age is not a sole factor to be considered for

taking decision in respect of the custody. The child at the tender

age is not fully aware of his welfare. There is always tendency to

be with parent with whom they are residing. They are mostly

influenced by tutoring by the parents. Interaction with child is

thus influenced by such parents. In the present case also, this

court interacted with the children. The children naturally stated

that they are happy with the father. However, it must be

considered that presently children are in custody of the father

and as expected, answer has come in favour of the father. 

{Para 12}

13. So far as better company and care is concerned, it is

seen that almost every member in the family of the husband is

occupied in the business. There is only grand-mother of the

children who is in the house for whole day. In the house of the

wife, she is always at home. She stays with her parents. There

are other relatives in the family. So far as deprivation of the

company is concerned, it needs to be noted that both the parties

are staying in the same town. Distance between the houses of

husband and wife is not more than 2 km. Thus, visitation by

parent would not be much difficult. Husband can always meet

children at convenient place. Husband and wife are related to

each other even prior to marriage. One more factor needs to be

considered is that there is one female child who is staying with

mother. If all the siblings stay together it would help children in

growing together. Being female child she requires care and

attention of the mother. Under Muslim Law, custody of the

children below 7 years is required to be with the wife.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO. 1708 OF 2024 WITH CA/7330/2024 IN FA/1708/2024

Mukhtar S/o. Yunus Sayyad, Vs  Habiba W/o. Mukhtar Sayyad,

CORAM : KISHORE C. SANT, J.

PRONOUNCED ON : 28th AUGUST, 2024

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Supreme Court: The Courts ought not to prematurely and without identification of individual instances of ‘alienating behaviour’, label any parent as propagator and/or potential promoter of such behaviour

 Psychologists term it as “The Parental Alienation Syndrome” [The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in “Recent Developments in Child Custody Litigation”, The Academy Forum, Vol. 29, No. 2 : The American Academy of Psychoanalysis, 1985]. It has at least two psychological destructive effects:

(i) First, it puts the child squarely in the middle of a contest of 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.

(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, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.”

18. The aforesaid submission found favour with the High Court. Pertinently, the High Court in the Impugned Order observed that the possibility of the Minor Children having been influenced against the Respondent, could not be ruled out.

19. We find ourselves unable to agree with the High Court - in our considered opinion, the High Court has failed to appreciate the intricacies and complexities of the relationship between the parties and accordingly, proceeded to entertain allegations of PAS on an unsubstantiated basis.

20. PAS is a thoroughly convoluted and intricate phenomenon that requires serious consideration and deliberation. In our considered opinion, recognising and appreciating the repercussions of PAS certainly shed light on the realities of long-drawn and bitter custody and divorce litigation(s) on a certain identified sect of families, however, it is equally important for us to remember that there can no straitjacket formula to invoke the principle laid down by this Court in Vivek Singh (Supra).

21. The role of a Court vis-à-vis allegation(s) of PAS came to be considered recently by an English Court i.e., the High Court of Justice Family Division in Re C (‘parental alienation’; instruction of expert), [2023] EWHC 345 (Fam). Pertinently, the Court reflected on the changing narrative in relation to PAS - placed before the Court therein, by an expert body i.e., the Association of Clinical Psychologists - UK (“ACP”) and thereafter observed as under:

“103. Before leaving this part of the appeal, one particular paragraph in the ACP skeleton argument deserves to be widely understood and, I would strongly urge, accepted:

‘Much like an allegation of domestic abuse; the decision about whether or not a parent has alienated a child is a question of fact for the Court to resolve and not a diagnosis that can or should be offered by a psychologist. For these purposes, the ACP-UK wishes to emphasise that “parental alienation” is not a syndrome capable of being diagnosed, but a process of manipulation of children perpetrated by one parent against the other through, what are termed as, “alienating behaviours”. It is, fundamentally, a question of fact.’

It is not the purpose of this judgment to go further into the topic of alienation. Most Family judges have, for some time, regarded the label of ‘parental alienation’, and the suggestion that there may be a diagnosable syndrome of that name, as being unhelpful. What is important, as with domestic abuse, is the particular behaviour that is found to have taken place within the individual family before the court, and the impact that that behaviour may have had on the relationship of a child with either or both of his/her parents. In this regard, the identification of ‘alienating behaviour’ should be the court's focus, rather than any quest to determine whether the label ‘parental alienation’ can be applied.”

22. We find ourselves in agreement with the aforesaid position. Courts ought not to prematurely and without identification of individual instances of ‘alienating behaviour’, label any parent as propagator and/or potential promoter of such behaviour. The aforesaid label has far-reaching implications which must not be imputed or attributed to an individual parent routinely.

23. Accordingly, it is our considered opinion that Courts must endeavour to identify individual instances of ‘alienating behaviour’ in order to invoke the principle of parental alienation so as to overcome the preference indicated by the minor children.5

24. In the instant appeal, the Family Court has categorically recorded that there was nothing on record to suggest that the interests and welfare of the Minor Children were in any manner affected during their stay with the Appellant. Additionally, the Learned Single Judge of the High Court interacted with the Minor Children on 24.02.2020 i.e., a period of close to 4.5 (four and a half) years after the alleged incident on 08.08.2015, and categorically recorded that the Minor Children expressed no overt preference amongst their parents - the aforesaid observation by the Learned Single Judge, is crucial as it underscores that while the relationship between the parties may have been strained; the Minor Children could not be said to have exhibited any indication of ‘parental alienation’ i.e., there was no overt preference expressed by the Minor Children between the parents and thus, the foundation for any claim of parental alienation was clearly absent. The aforesaid position is also supported by materials on record to suggest that (i) the Minor Children are cognisant and aware of the blame game being played inter se the parties; and (ii) that the Minor Children did not foster unbridled and prejudiced emotions towards the Respondent. Accordingly, we find that the Appellant could not have been said to have engaged or propagated ‘alienating behaviour’ as alleged by the Respondent.

25. Therefore, in our considered opinion, the High Court failed to appreciate the aforesaid nuance and proceeded on an unsubstantiated assumption i.e., that allegations of parental alienation could not be ruled out, despite the stark absence of any instances of ‘alienating behaviour’ having been identified by any Court. In view of the aforesaid discussion, we find that the reliance placed on Vivek Singh (Supra) by the Respondent is misdirected and the High Court erred in law and in fact whilst relying on the said decision.

26. Accordingly, on an overall consideration, we are convinced that the High Court was neither correct nor justified in interfering with the well-considered and reasoned order passed by the Family Court granting custody of the Minor Children to the Appellant for the reasons recorded above.

 In the Supreme Court of India

(Before Vikram Nath and Satish Chandra Sharma, JJ.)

Col. Ramneesh Pal Singh Vs Sugandhi Aggarwal 

Civil Appeal No(S). of 2024 

Decided on May 8, 2024

Citation: 2024 SCC OnLine SC 847.

The Judgment of the Court was delivered by

Satish Chandra Sharma, J.

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Bombay HC: Although Adultery Is Grounds For Divorce, It Can't Be A Ground To Deny Child's Custody

 The submission made on behalf of the petitioner/husband as regards the adulterous behavior of the respondent/wife, according to me, these are the allegations which are made in the marriage petition by Husband before Family Court, filed in the year 2020. The said allegation has to be proved by leading evidence before the Family Court. Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother. {Para 45}

46. In the present case as regards, the allegations made by

Husband are still to be proved. In the judgment of Vineet Gupta

Vs. Mukta Aggarwal reported in 2024 SCC Online Del 678, it has

been held that even though the allegations are proved as regards

the wife’s extra martial affair, still as far as the custody of the

minor children is concerned, in a given case, the same can be

granted to the wife.

47. Adultery is in any case a ground for divorce, however

the same can’t be a ground for not granting custody.

48. Hence, this writ petition fails. No costs.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4060 OF 2024

Petitioner  V/s.  S

CORAM : RAJESH S. PATIL, J.

Dated:  19 APRIL 2024.

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What basic principles the court should follow while deciding child custody dispute?

Principles governing custody of minor children

53. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict Rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.

55. We are unable to appreciate the approach of the Courts below. This Court in catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

[Emphasis supplied]

14. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupam Tandon and Anr. MANU/SC/1013/2010 : 2010:INSC:836 : (2010) 14 SCC 274, this Court held as under:

19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.

16. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka and ors.' case (supra). It was held as under:

13. We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1345 of 2024.

Decided On: 04.03.2024

Shazia Aman Khan and Ors. Vs. The State of Orissa and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation:- MANU/SC/0160/2024.

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Supreme Court: Orders Giving Visitation Right/Temporary Child Custody Cannot Be Passed In A Proceedings For Restitution Of Conjugal Right

The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03062019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal. {Para 7}

 IN THE SUPREME COURT OF INDIA

Transfer Petition (Civil)  No. 964/2021

Date of Order: 08.12.2022

Priyanka Vs. Santoshkumar

Hon'ble Judges/Coram:

Surya Kant and J.K. Maheshwari, JJ.

Citation:  MANU/SCOR/123274/2022.

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What is the basic concept of "parens patriae" under Indian law?

 The doctrine of "parens patriae" is a legal concept derived from English common law, which translates to "parent of the country" in Latin. In essence, it refers to the inherent power and authority of the state to act as a guardian for individuals who are unable to take care of themselves or who are deemed legally incompetent. The state intervenes to protect the interests of those individuals, particularly children, the mentally ill, and other vulnerable groups.

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Leading Supreme Court Judgment on Parental Alienation Syndrome

 The intensity of negative 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 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 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'1. It has at least two psychological destructive effects:

1 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis, 1985).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3962 of 2016

Decided On: 13.02.2017

Vivek Singh Vs. Romani Singh

Hon'ble Judges/Coram:

Jasti Chelameswar and A.K. Sikri, JJ.

Author: A.K. Sikri, J.

Citation:  MANU/SC/0156/2017,AIR2017SC929,(2017)3SCC231.

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Leading judgment on shared parenting after divorce in Family law

One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.{Para 9}

10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child's education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.

11. The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:

(i) That "shared parenting" is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children's age and stage of development. Thus, "shared parenting" is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.

(ii) Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.

(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.

(iv) Any judicial discretion to be exercised by the Court must be in the best interest of the children.

(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.

(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.

19. In some cases, the concept of shared parenting may not work at all, particularly when one of the parents resides abroad or in a place different from the residence of another parent. It all would all depend on the facts and circumstances of each case, but there is a clear momentum in law towards shared parenting with the child in focus and the rights of the child being the over-riding factors rather than the rights of the separated parents. It would be ideal if the parents jointly submit a plan for shared parenting. In the alternative, the Court must exercise its parens patriae jurisdiction.

20. There may be certain drawbacks in shared parenting also particularly, when one of the parents is a habitual perpetrator of domestic violence, child abuse, child kidnap or child neglect or showing disinterest in the child. The other is when once separated parents re-marry, the second spouse may not be interested in the parenting of the child or maintaining links with the child from the first marriage. Therefore, there would be a dislike towards the child, which may cause emotional problem or harm to the minor child. Very often, differences in the finance and social status of the parents can cause a void, which the child would have to put up with. More importantly, the child would have to be moving between two homes. The ideal situation is, if the child is consistently in one home and the parents move in and out of the home. Nevertheless, it must be understood that children of divorced parents need both parents both emotionally and physically and hence, exclusive custody to one parent with visitation rights to the other cannot be a complete remedy. Thus, what emerges is that the expression 'best interest' and 'welfare of the child' must be imbibed in the context in which the child is positioned between the parents. The facts and circumstances of each case would vary and what is good in one case, may not be good in the other case and vice versa.

21. That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression "joint" or "shared" would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage. The personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

M.F.A. Nos. 1536 of 2015 [GW] and 137 of 2015 [GW/WC]

Decided On: 11.09.2020

Savitha Seetharam Vs. Rajiv Vijayasarathy Rathnam

Hon'ble Judges/Coram:

B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/KA/3123/2020,2020/KHC/14304-DB

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