The Delhi High Court modified a custody order, changing overnight visitation to day visits, based on the intelligent preference of the minor and holding that the "affection of the child cannot be won over by force."

The parties got separated due to matrimonial differences and the father filed a guardianship petition for the custody of their child on the premise that the mother was not taking proper care of the child. Before final adjudication, the Family Court interacted with the minor, who expressed a desire to continue living with his mother.

The mother appealed against the judgment of the Family court which declared both the parents of the minor child as joint guardians by providing visitation rights to the father and awarding custody to the mother until the child reaches the age of eighteen. The mother argued that the child was not safe in the custody of the father. Secondly, there was an incident where the father had escaped with the child after giving the custody counsellor a laced beverage and locking him in the bathroom. Lastly, the father had failed to pay any maintenance for the last three years as well.

A Division Bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna observed, “It is the child who suffers the most casualty in custody battle because even if either parent wins, the child loses everything due to polarization of familial relations. Merely having a child does not make one a ‘parent’, rather the one who protects the child from being torn in such parental conflicts is the closest to being an ‘ideal-parent’. The focus should be the child’s future and not the parents’ past.

Advocate Abhishek Kumar represented the appellant, while Advocate Iashwar Singh appeared for the respondent.

The High Court referred to the Supreme Court’s decision in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, wherein it was observed that while dealing with custody cases, the court has to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development, and favourable surroundings. The Court noted, “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.

Noting that “affection of the child cannot be won over by force,” the Court mentioned that the record stated that the father had not been able to create any bond or develop any love and affection with the child and all the visitations were forced with the intervention of the Counsellor.

The Court held, “The child even stated that he does not have any happy memories with the respondent/father and does not want to interact or meet him. Because of this long alienation, the child has no inclination even to meet the respondent/father. This intelligent preference of the child who is on the verge of adulthood, which is a significant factor in terms of S.17(3) Of the Guardian and Wards Act, 1890 cannot be overlooked or ignored.

The Court remarked that financial status is not the sole determinant in custody matters and held that “even if the mother is less capable financially, she becomes no less competent to ensure the welfare of the child and the father would still be under an obligation to ensure the financial well being of the child.

The Court agreed with the decision of the Family Court in granting custody to both parents but modified the overnight custody and the visitation rights granted to the father to visitation rights on alternate Saturdays in a Family Court for 3 hours.

Accordingly, the High Court modified the appeal.

Cause Title: ABC v. XYZ (2024:DHC:394-DB)

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