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Custody of Children, Guardianship,  Visitation Rights etc. Judgments of Supreme Court and High Courts with citations

Title of Case and Citation Question involved Decision of Hon'ble Court
Beata Agnieszka
Sobieraj Versus
State of Himachal
Pradesh
Criminal Appeal
No. 787 of 2016
DOD : 22.08.2016
(Supreme Court)
Custody of Child to independent
authority
Whether it is permissible to Hand over child custody to an Institution ignoring parent's
claim.
While depreciating the practice of handing over the custody of the child to an
institution, by ignoring the claim of a parent, especially the mother of the child, as not
acceptable.
The handing over of custody of child to an Institution, while ignoring the claim of a parent, especially the mother of the child, is not acceptable.
Bimla and
others
Vs
Anita
2015(3) RCR
(Civil) 153
(SC)
Custody of the minor Mother is the best person to bring up her minor son and to effectively take care of his interest and in indeed, the welfare of the child lies with
his mother.
ABC (Karuna
Purti)
Vs
State (NCT of
Delhi)

2015 (2) SCC
(SC) 753

Hindu Minority
and Guardianship
Act
In a petition for appointment for guardian of child, it is not imperative for unwed mother to specifically give notice of such petition to putative father of child to whom she has given birth.

Under a guardianship petition laid before court- the concerned child ceases to be in exclusive custody of parents thereafter until attainment of majority-child continues in curial curatorship.

This is in light of parents patria jurisdiction of court.

Surya Vadanan
Vs
State of Tamil
Nadu

2015 (2) SCC
(Civil) 183
(SC)

Welfare of the
Child
Hon'ble Supreme Court of India after discussing the cases of

(a) Arathi Bandi Vs. Bandi Jagadrakshaka Rao 2013 (3) RCR (Civil) 968:

(b) Dhanwanti Joshi Vs Madhav Und, 1998(1) RCR (Civil) 190;

(c) Elizabeth Dinshaw Vs Arvind M.Dinshaw, 1987 (1) SC 42;

(d) Mckee Vs Mckee, 1951 AC 352;

(e) Ruchi Majoo Vs Sanjeev Majoo, 2011 (3) RCR Civil, 122,

(f) Sarita Sharma vs Sushil Sharma, 2000(2) RCR (Civil) 367;

(g) Mrs.Shilpa Aggarwal Vs. Mr.Aviral Mittal
& Anr., 2010(1) RCR (Civil) 231;

(h) Smt. Surinder Kaur Sandhu Vs Harbax Singh
Sandhu, 1984 (3) SCC 698 and

(i) Dr.V.Ravi Chandran Vs. Union of India, 2010 (1) SCC 174.
Observed and held that the best interests and welfare of the child are of paramount importance

Romann Sharma
Vs
Arun Sharma

2015 (2) SCC 18; AIR 2015
SC 2232,

Custody of Child In the above said case, Hon'ble Supreme Court of India after discussing the cases of (a) Mausami Moitra Ganguli Vs Jayant Ganguli, 2008 (4) RCR (Civil) 551 and (b) Sarita Sharma vs Sushil Sharma, 2000(2) RCR (Civil) 367 has held that on account of dispute between husband and wife over the custody of the minor child.
- The custody the child below the age of 5 years, was given to the mother, who was highly qualified than husband and had regular income from salary.
- But visitation rights were given to the father.

 

 

Title of Case and Citation Question involved Decision of Hon'ble Court
Saroj
Vs
Sunder Singh
and others

2014(1) SCC 08

(Civil Law) -
Cancellation of
sale deed.
It was observed that prior permission of the court under Section 8 of the Hindu Minority and Guardianship Act, 1956 was required for such purpose and therefore the sale was set aside.
- Disposal of immovable property by a natural guardian though for the proper benefit of the minor,
their protection, education in contravention of Section 8(3)
- would be voidable at the instance of minor.
- Both the sale deed executed by the Respondent No.2 in favour of Respondent No.1 shall be voidable at the instance of minor.
Arathi Bandi
Vs
Bandi Jagadrakshaka
Rao
2013 (3) RCR
(Civil) 968
Decree of Foreign
Court
Hon'ble Supreme Court of India after discussing the cases of (a) Dhanwanti Joshi Vs Madhav Und, 1998(1) RCR (Civil) 190; (b) Elizabeth Dinshaw Vs Arvind M.Dinshaw, 1987 (1) SC 42;
(c) Ruchi Majoo Vs Sanjeev Majoo, 2011 (3) RCR Civil, 122, (d) Sarita Sharma vs Sushil Sharma, 2000(2) RCR (Civil) 367; (e) Mrs.Shilpa Aggarwal Vs. Mr.Aviral Mittal & Anr., 2010(1) RCR (Civil)
231; (h) Smt. Surinder Kaur Sandhu Vs Harbax Singh Sandhu, 1984 (3) SCC 698 and (i) Dr.V.Ravi Chandran Vs. Union of India, 2010 (1) SCC 174.
- Held that the decree of foreign court dissolving
marriage between couple of Indian origin and who had acquired citizenship of US.
-The courts in India should not set aside the decree on the ground that USA law was inconsistent with Indian Law.
Gaytri Bajaj
Vs
Jiten Bhalla
AIR 2013 SC
(Civil) 77
Custody of Minor
Child
That issue of custody of minor child is to be decided from the angle of welfare of child and not the better rights of parents as welfare of child is ultimate consideration.
Shaleen Kabra
Vs
Shiwani Kabra
2012 (2) RCR
(Civil) 974
(SC)
Family Law
(Custody of
Children)
That the custody of elder son to the husband and that of younger son to the wife.
- But the Hon'ble Supreme Court of India has held that it was not proper to separate both the brothers who are admittedly close to each other and therefore the Hon'ble Apex Court of India set aside the impugned judgment and the custody of
both the children was given to the father with visiting right to the mother at the expenses of father.
Ruchi Majoo
Vs
Sanjeev Majoo
AIR 2011 SC
1952; (2011) 6
SCC 479
Custody of Child Interim order of custody in favour of parent
should not insulate minor from parental touch and
influence of other parent important for healthy growth of minor and development of his personality.
Vikram Vir
Vohra
Vs
Shalini Bhalla
AIR 2010 SC 1675
Custodial Rights &
Visitation Rights
of Minor Child
Custody of minor child.
- Welfare of child is of paramount importance.
- A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.
- Custody of minor child - welfare of child is of
paramount importance and not the rights of parents under a statute.

 

Title of Case and Citation Question involved Decision of Hon'ble Court
Dr. V.Ravi
Chandran
Vs
Union of India
& others
2010 (1) SCC 174
(SC)
Custody of Child That while granting divorce to NRI couple by U.S. Court
handed over the joint custody of child to the couple. But the wife brought the child in India, depriving the joint custody to father.
- Supreme Court of India directed the parties to act as per consent order passed by the Family Court of U.S.A. and directed that mother shall take the child of her own to USA within 15 days of the order and if she fails to do so, minor child alongwith his passport shall be restored to the custody of the father as return of minor child to USA would be in the best interest of the minor child.
- Ratio: Interest of minor child is paramount consideration in cases of custody.
Mrs.Shilpa
Aggarwal
Vs
Mr.Aviral
Mittal & anr
2010 (1) SCC
(Civil) 650
(SC)
Custody of Child Held that the husband and wife were permanent
resident of UK and the wife came to India alongwith minor child.

- When the husband filed petition for custody of child in the court, then

- The Hon'ble Supreme Court of India allowed the same with the condition that the husband shall pay all the expenses of wife and child i.e. travel expenses, stay arrangement, medical expenses, legal expenses etc. to which the husband agreed.

Gaurav Nagpal
Vs
Sumedha
Nagpal
(2009) 1 SCC 42
(SC)
Hindu Minority
and Guardianship
Act, 1956 and
Custody of the
minor child.
In any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
- The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the welfare of the child' and not rights of the parents under a statute for the time being in force.
Mausami
Moitra Ganguli
Vs
Jayant Ganguli
2008 (4) RCR
(Civil) 551
(SC)
Welfare of a child In the above said case, Hon'ble Supreme Court of
India after discussing the case of Rosy Jacob Vs Jacob A. Chakramakkal, 1973 (1) SCC 840 has held that paramount consideration is the welfare of the child.
Nil Ratan
Kundu and anr
Vs
Abhijit Kundu
2008 (3) RCR
(Civil) 936
(SC)
Hindu Minority
and Guardianship
Act, 1956 and
Custody of the
Minor Child.
Held that the controlling consideration governing the custody of the children is the welfare of the children and not the right to their parents.
Sheila B.Das
Vs
P.R.Sugasree
2006 (1) RCR
(Civil) 758
(SC)
Family Law
(Custody of minor
female child)
Held that the custody of minor female child was given to the father as per choice of the child with the observation that child was highly intelligent and was in a position to make intelligent choice.
Mamata Alias
Anju
Vs.
Ashok
Jagannath
Bharuka
2005 (12) SCC
452;
Law finder Id #
192313
(SC)
Custody of Child
vis-a-vis Mutual
Divorce
Hindu Marriage Act, 1955, Section 26 - Custody of
Children.

- Mutual divorce - before deciding the issue as to
whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must(a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a welfare work.
- All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent.

Sarita Sharma
Vs
Sushil Sharma
2000 (2) RCR
(Civil) 367
(SC)
Custody of minor
children and
Constitutional Law
Articles 226 and
136.
Held that in the present case husband and wife lived in America.
- Where divorce petition was filed, the wife came to India with both the children and the American court granted decree of divorce and custody of the children to husband.
- But in view of facts and circumstances of the case, the decree passed by the American court through a relevant factor, but the same cannot override the consideration of welfare of the minor children.
Bijay K.Prasad
Vs
Ranjana
1999(9) SCC 544
(SC)
Custody of Child
pending divorce
Hindu Marriage Act, 1955, Section 26 - Divorce
proceeding - custody of child.

- Held-During pendency of divorce proceedings Family Court ordered girl child to remain living with father and to spend holidays with mother - Child States her wish to say with father in chamber of S.C. Judge-

- Considering that child was living with father for past 8 years - Directions of Family court to stay with mother in holidays set aside.

Chandrakala
Menon
Vs
Capt. Vipin
Menon
(1993) 2 SCC 6
(SC)
Custody of child The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties.
- The custody of a child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

- It would be in the interest and welfare of minor that she would be permitted to be in the custody of her mother.

Kirtikumar
Maheshankar
Joshi
Vs
Pradipkumar
Karunashankar Joshi
(1992) 3 SCC 573
(SC)
Custody of minor
children
Hon'ble Supreme Court handover the custody of
minor children to maternal uncle refusing the
preferential right of the father to the custody of his minor children.
In one of the directions Father is set at liberty to move before the court for modification of the order for the custody of the children if he wins the love and affection of his children.
Elizabeth
Dinshaw
Vs
Arvind
M.Dinshaw
1987 SCR (1) 175
(SC)
Custody of the
minor children
In the above case, Hon'ble Supreme Court of India after discussing the case of Re H. (Infants) 1966 (1) All England Reporter 886.

- Held that when a question arises pertaining to the custody of a minor child.
- The matter is to be decided not on considerations of the legal rights of the parties.
- But on the sole and predominant criterion of
what would best serve the interest and welfare of the minor.

Surender VS
Sushma

AIR 2016 P&H
199;
Law finder ID #
790898

Custody of minor
children
 Welfare of the children is the paramount
consideration. Where mother is resided separately from minor children for many
years and the children did not show any desire to go with her - father granted custody and mother granted visitation rights.

 

Title of Case and Citation Question involved Decision of Hon'ble Court
Maninderjit
Kaur Attwal VS Barinder Singh
Pannu
2016 (1) PLR
358;Law finder ID#
736836
(P&H)
Visitation rights  Where marriage between the parents of children was dissolved by USA Court and custody of children was given to the father with visiting rights to the mother during vacations.
- Mother should be allowed to take the children to USA during vacations. Apprehension of the court and rejection of such prayer was held to be wrong.
- Mother put to terms and condition to ensure their safety and safe return to India beside to bear travel expenses of children.
Neelam Vs
Mann Singh
2015 (2) RCR
(Civil) 291;
Law Finder id #
654950
(P&H)
Custody of minor child residing with
grandparents
where father is
dead and mother is facing criminal
prosecution U/s
306 IPC for abating suicide of her husband.
 Welfare and interest of the child is paramount.
- A child who is residing with grandparents for the last several years become emotionally attached to them.
- In such circumstances custody of the child should remain with grandparents.
- Visitation rights to the mother also declined.
Mayank
bhargava
vs
Jyoti Bhargava
2015(2) PLR 15
(P&H)
Welfare of the
Child
Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890.
- These principles are equally applicable in dealing with the custody of a child under Section 26 of the Act.
- Since in both the situations two things are common;
- The first, being orders relating to custody of a growing child.
- Secondly, the paramount consideration of the welfare of the child.
Rajan Jairath
Vs
Mrs.Monita
Mehta
2013 (1) RCR
(Civil) 546
(P&H)
Grant of Visitation
Right under Hindu
Marriage Act,
1955, S.26.
Interim Custody of child.
- Court has also to take care of the wish of the minors.
- Both parents claiming custody of children - minors and living with their mother at Chandigarh whereas father being Senior Manager in PSU is living at Faridabad.
- Father would not be in a position to spare enough time to look after the education, health, study and maintenance.
- The children being matured enough, had made statements before the Lok Adalat that they are not ready to go with their father
as due to long separation they have lost interest in father.
- Custody given to mother and visiting rights to father.
Shri Rajinder
Kumar Mishra
Vs
Shrimati
Richa
AIR 2005 All 379
Appeal u/s 19
Family Courts Act
Section 26, 27
Hindu Marriage
Act, 1955
 It is well settled that welfare of the minor child is of paramount consideration
while deciding the dispute about the custody.
- If the custody of the father cannot promote the welfare of the minor child equally or better than the custody of the mother then he should not be allowed to the custody as the same may adversely affect the welfare of the child.

 

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