2024 INSC 397 SLP (C) No. 28466 of 2023 Page 1 of 27

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). OF 2024

[Arising out of SLP (C) No(s). 28466 of 2023]

COL. RAMNEESH PAL SINGH …APPELLANT(S)

VERSUS

SUGANDHI AGGARWAL …RESPONDENT(S)

J U D G M E N T

SATISH CHANDRA SHARMA, J.

Introduction

1. Leave granted.

2. The present appeal preferred by the Appellant seeks to

assail the correctness of an order dated 11.10.2023 passed by a

Division Bench of the High Court of Delhi at New Delhi (the

“High Court”) in M.A.T. APP (F.C.) 132 of 2020 (the

“Impugned Order”). Vide the Impugned Order the High Court

partly allowed the appeal preferred by the Respondent against an

SLP (C) No. 28466 of 2023 Page 2 of 27

order dated 22.08.2020 passed by the Learned Family Court,

West, Tis Hazari Court (the “Family Court”) in GP No. 45/17

(Old GP No. 75 of 2015) whereby the Family Court granted

permanent custody of minor children to the Appellant and

provided visitation rights to the Respondent (the “Underlying

Order”). Pertinently, vide the Impugned Order, the High Court

set aside the Underlying Order; and accordingly granted the

parties shared custody of the Minor Children (defined below).

Factual Background

3. The facts and proceedings germane to the contextual

understanding of the present lis, are as follows:

3.1. The marriage between (i) the Appellant i.e., now serving

as a Colonel in the Indian Armed Forces presently posted

at Jalandhar, Punjab; and (ii) the Respondent i.e., now

employed as a teacher in Delhi Public School, Gurugram -

was solemnized on 22.12.2002 at Delhi, in accordance

with Hindu/Sikh rites and rituals. Two minor children were

born out of the wedlock i.e., (i) a 15 (fifteen) year old

daughter (hereinafter “SSU”); and (ii) a 12 (twelve) year

old son (hereinafter "SSH”) (hereinafter, SSU and SSH

shall collectively be referred to as the “Minor Children”).

SLP (C) No. 28466 of 2023 Page 3 of 27

3.2. In December 2013, the Appellant having been promoted to

the rank of Colonel in the Indian Armed Forces, was

posted to serve in the Jammu and Kashmir. Accordingly, it

was decided that the Respondent together with the Minor

Children would reside in New Delhi. The relationship

between the Parties deteriorated significantly; and

thereafter took a turn for the worst on 08.08.2015, forcing

the Respondent to leave the matrimonial home for 1 (one)

night. Upon returning the next day i.e., 09.08.2015, the

Respondent found the residence locked, and the Appellant

along with the Minor Children unavailable at aforesaid

residence.

3.3. The Respondent was constrained to file (i) a missing

children’s report on 19.08.2015; and thereafter (ii) an

application under Section 12 of the Protection of Women

from Domestic Violence Act, 2005 (the “DV Act”) on

17.08.2015. Subsequently, the Respondent learnt that the

Minor Children along with the Appellant were residing in

Gulmarg, Jammu and Kashmir and were scheduled to

move to Bikaner, Rajasthan in furtherance of the nature of

the Appellant’s service. Aggrieved, the Respondent filed a

petition under Section 7, 9 and 25 of the Guardian and

Wards Act, 1890 (the “Act”) before the Family Court

seeking custody of the Minor Children on 21.11.2015. On

SLP (C) No. 28466 of 2023 Page 4 of 27

the other hand, the Appellant filed a similar petition

seeking custody of the Minor Children before the Learned

Principal Jude, Family Court, Bikaner, Rajasthan.

3.4. This Court vide an order dated 29.03.2017, transferred the

custody petition filed by the Appellant before the Learned

Principal Jude, Family Court, Bikaner, Rajasthan to the

Family Court in Delhi. Thereafter, vide an order dated

16.10.2017, the Family Court granted interim custody of

the Minor Children to the Respondent (the “Interim

Custody Order”). Aggrieved, the Respondent preferred

an Appeal before the High Court. Vide an order dated

06.12.2017, the High Court initially stayed the operation

of the Interim Custody Order; thereafter vide an order

dated 19.04.2018 granted the Respondent custody of the

Minor Children on alternative weekends; and finally vide

an order dated 01.10.2019, dismissed the appeal and

vacated the interim order(s) observing inter alia that the

appeal was not maintainable.

3.5. Aggrieved, the Appellant preferred a writ petition under

Article 227 of the Constitution of India before the High

Court challenging the correctness of the Interim Custody

Order (the “Writ Petition”). Vide an order dated

29.04.2020, the High Court formulated an interim custody

SLP (C) No. 28466 of 2023 Page 5 of 27

arrangement between the parties after interacting with the

Minor Children. Pertinently, although an SLP was

preferred against the aforesaid order, this Court did not

interfere with the order passed by the High Court; and only

directed the Family Court to decide the custody petition

within a period of 1 (one) month.

3.6. In the aforesaid context, the custody petition came to be

disposed of by the Family Court vide the Underlying Order

as under:

“16.1 In view of the aforesaid discussion, it is

directed that the permanent custody of minor

children SSU and SSH shall remain with the

respondent. However, the petitioner shall be

entitled to have interaction with the minor children

daily through audio-video call for half an hour,

between 7:00 PM to 8:00 PM. The respondent shall

facilitate the said call. She shall also be entitled to

visit the minor children and take them out with her

from 10:00 AM to 5:00 PM, on every second and

fourth Sunday, at the station, where the minor

children are staying, subject to their

school/educational commitments. She can pick up

the children from their residence at 10:00 AM and

drop them back at 5:00 PM. If it is not possible to

have visitation on any such day, it shall be

compensated on the next Sunday i.e. third or

fifth/first Sunday. Further, during the summer

vacations and the winter vacations in the school(s)

of the minor children, the petitioner shall be entitled

to have the custody of the minor children for ten

SLP (C) No. 28466 of 2023 Page 6 of 27

days and five days respectively. Such days can be

mutually decided by the parties. Accordingly, the

petition filed by the petitioner for seeking custody of

the minor children SSU and SSH is dismissed,

subject to contact/visitation/custody rights of the

petitioner as aforesaid.”

3.7. Aggrieved by the Underlying Order, the Respondent

preferred an appeal under Section 19 of Family Courts Act,

1984 before the High Court. During the pendency of the

appeal, certain interim order(s) came to be passed from

time to time, subsequently, vide the Impugned Order, the

High Court granted the parties shared custody of the Minor

Children as under:

“34. In view of the aforesaid discussion, the

impugned order dated 22.08.2020 is set aside. We,

accordingly, partly allow the appeal and direct that

the appellant and the respondent will share custody

of the minor children ‘SSU’ and ‘SSH’ in the

following manner:

(i) Till the start of the next academic session the

appellant would be entitled to have overnight

custody of the minor children on the second and

fourth weekend of every month. For the said

purpose, the appellant shall travel to the

respondent’s station of posting, on her own expenses

on the second Friday of every month. She shall

either make her own arrangements for

accommodation or request the respondent to

arrange for her accommodation at a guest house in

the Cantonment Area. The respondent will hand

SLP (C) No. 28466 of 2023 Page 7 of 27

over the custody of the children to the appellant on

the evening of Friday, after she has arrived. The

children shall remain with the appellant till Sunday

evening and thereafter, the respondent shall pick

them up before the appellant leaves for Delhi. On

the fourth Friday of every month, the respondent

shall either bring the children to Delhi or send them

by flight, while placing them in the care of the

airline staff. In such a situation, the appellant will

pick the children up from the airport. The children

shall be returned by flight available on Sunday

evening. The expenses for the to and fro journey of

the children on such fourth weekend of each month

shall be borne by the respondent.

(ii) Prior to the beginning of the next academic

session, the appellant shall ensure that admission of

the minor children is secured at the school where

she is currently teaching, i.e., Delhi Public School,

Gurugram, Haryana. The respondent shall fully

cooperate in the admission process. Thereafter, the

respondent shall hand over the custody of the minor

children to the appellant. The children will stay

with the appellant at her residence in Delhi. In such

a situation, the respondent would be entitled to have

overnight custody of the minor children on the

second and fourth weekend of every month. For the

said purpose, the respondent shall travel to Delhi,

on his own expenses on every second Friday. He

shall make his own arrangements for

accommodation. The appellant will hand over the

custody of the children to the respondent on the

evening of Friday, after he has arrived. The

children shall remain with the respondent till

Sunday evening and thereafter, the appellant shall

pick them up before the respondent leaves. On the

SLP (C) No. 28466 of 2023 Page 8 of 27

fourth Friday of every month, the appellant shall

either bring the children to the respondent’s station

of posting or send them by flight, while placing them

in the care of the airline staff. In such a situation,

the respondent will pick the children up from the

airport. The children shall be returned by flight

available on Sunday evening. The expenses for the

to and fro journey of the children on such fourth

weekend of each month shall be borne by the

appellant.

(iii) In case the respondent is posted to a station in

the NCT of Delhi, the appellant and the respondent

will have custody of the minor children for two

weeks each including the weekends, every month.

The children shall stay with the appellant for the

first two weeks of every month and with the

respondent for the next two weeks of every month.

At the end of the second week of every month, i.e.,

on Sunday evening, the appellant shall drop the

children at the respondent’s accommodation. At the

end of every fourth week, i.e., on Sunday evening,

the respondent shall drop the children back at the

appellant’s residence.

(iv) During summer vacations and winter vacations,

the appellant and the respondent shall have custody

of the minor children for an equal number of days.

Such days can be mutually agreed upon by the

parties. It is clarified that in case the children are

required to travel as a result of the said

arrangement during vacations, the expenses for

their travel shall be borne by the parent who they

are visiting. Therefore, if the children are travelling

from the respondent’s station of posting to Delhi, the

expenses shall be borne by the appellant. If the

children are travelling from Delhi to the

SLP (C) No. 28466 of 2023 Page 9 of 27

respondent’s station of posting, the expenses shall

be borne by the respondent.”

3.8. Aggrieved by the Impugned Order, the Appellant preferred

SLP (C) No. 28466 of 2023 (the “SLP”) before this Court

i.e., now converted to this instant appeal. Vide an order

dated 05.01.2024, this Court stayed the operation of the

Impugned Order.

3.9. It would also be relevant to clarify that, up until this stage,

the custody of the Minor Children has essentially remained

with the Appellant despite (i) various interim order(s)

passed by (a) the High Court; and (b) the Family Court in

favour of the Respondent; and (ii) the initiation of

contempt proceedings before the High Court.

Contentions of the Parties

4. Shri Vivek Chib, Learned Senior Counsel appearing on

behalf of the Appellant, urged the following:

4.1. That the Minor Children have been residing with him

happily since ‘15 i.e., for period extending to almost to 9

(nine) years and it is the desire of the Minor Children to

continue to reside with the Appellant. In this regard, it was

submitted that the aforesaid preference has been

communicated by the Minor Children to various court(s)

from time -to-time including inter alia the High Court.

SLP (C) No. 28466 of 2023 Page 10 of 27

4.2. That the High Court proceeded on an erroneous

assumption that the prolonged period of separation

between the Respondent and the Minor Children has sub-

consciously influenced the Minor Children against the

Respondent.

4.3. That the Underlying Order passed by the Family Court was

a detailed and well-reasoned order which has been passed

after a thorough analysis of the copious evidence and

material(s) on record in favour of the Appellant.

4.4. Lastly, Mr. Chib relied on the following decision(s) of this

Court to buttress the aforesaid submission(s):

(a) Jitender Arora v. Sukriti Arora, (2017) 3 SCC 726;

(b) Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC

413;

(c) Mausami Moitra Ganguli v. Jayant Ganguli,

(2008) 7 SCC 673;

(d) Vishnu v. Jaya, (2010) 6 SCC 733; and

(e) Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC

311.

5. Ms. Vandana Sehgal, AOR appearing on behalf of the

Respondent brought forth the following key contentions:

5.1. That the Appellant has forcefully retained the custody of

the Minor Children for a prolonged period of 8 (eight)

SLP (C) No. 28466 of 2023 Page 11 of 27

years in blatant disregard of various order(s) passed by the

High Court and / or the Family Court directing interim

shared custody of the Minor Children at different points of

time.

5.2. That the Underlying Order granted the Appellant custody

of the Minor Children proceeding on an erroneous and

irrelevant consideration i.e., the alleged act of adultery.

5.3. That the Appellant has deliberately disenfranchised the

Minor Children from their mother i.e., the Respondent

herein, and accordingly it was vehemently contended that

the present lis is a classic case of ‘parental alienation

syndrome’ (“PAS”).

5.4. That the Minor Children are at an impressionable age and

require the presence of their mother i.e., the Respondent.

5.5. That the Court whilst exercising its parens patriae

jurisdiction must not limit itself to the wish and / or desire

of the Minor Children but must ensure the welfare of the

Minor Children.

5.6. That the Respondent is employed as a teacher in a reputed

school in Gurugram; and would be able to provide the

Minor Children with a stable and conducive environment

as opposed to Appellant i.e., a serving officer in the Indian

SLP (C) No. 28466 of 2023 Page 12 of 27

Armed Forces, who is due to be transferred to a field

station as opposed to a family station.

5.7. In regard to the aforesaid, Ms. Sehgal relied on the

following:

(a) Vivek Singh v. Romani Singh, (2017) 3 SCC 231;

(b) Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC

42;

(c) Nil Ratan Kundu (Supra); and

(d) Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1

SCC 840.

Analysis and Findings

6. We have heard the learned counsels appearing on behalf of

the respective parties at length and we have carefully considered

and deliberated upon the submission(s) made on behalf of the

parties.

7. In the instant appeal we have been called upon to decide

the guardianship of 2 (two) minor children i.e., (i) SSU; and (ii)

SSH, till they attain the age of majority.

8. It is well settled that the principal consideration of the

Court whilst deciding an application for guardianship under the

SLP (C) No. 28466 of 2023 Page 13 of 27

Act in exercise of its parens patriae jurisdiction would be the

‘welfare’ of the minor children.

1

9. The aforesaid principle is also enshrined in Section 17 of

the Act, the same is reproduced as under:

“17. Matters to be considered by the Court in

appointing guardian. – (1) In appointing or

declaring the guardian of a minor, the Court shall,

subject to the provisions of this section, be guided

by what, consistently with the law to which the

minor is subject, appears in the circumstances to be

for the welfare of the minor.

(2) In considering what will be for the welfare of the

minor, the Court shall have regard to the age, sex

and religion of the minor, the character and

capacity of the proposed guardian and his nearness

of kin to the minor, the wishes, if any, of a deceased

parent, and any existing or previous relations of the

proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent

preference, the Court may consider that preference.

2* * * * *

(5) The Court shall not appoint or declare any

person to be a guardian against his will.”

10. In this context, it would be appropriate to refer to a

decision of this Court in Nil Ratan Kundu (Supra) wherein

parameters of ‘welfare’ and principles to be considered by courts

1

V. Ravi Chandran (Dr.) (2) v. Union of India, (2010) 1 SCC 174

2

Sub-section (4) omitted by Act 3 of 1951, s. 3 and the Schedule.

SLP (C) No. 28466 of 2023 Page 14 of 27

whilst deciding questions involving the custody of minor

children came to be enunciated. The relevant paragraph(s) are

reproduced as under:

“52. 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 the custody of

a minor, a court of law should keep in mind the

relevant statutes and the rights flowing therefrom.

But such cases cannot be decided solely by

interpreting legal provisions. It is a human 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 wellbeing 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 beignored. 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.

xxx

SLP (C) No. 28466 of 2023 Page 15 of 27

55. We are unable to appreciate the approach of the

courts below. This Court in a 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.

56. In Rosy Jacob [(1973) 1 SCC 840] this Court

stated:

(SCC p. 854, para 15)

“15. … The contention that if the husband

[father] is not unfit to be the guardian of his

minor children, then, the question of their

welfare does not at all arise is to state the

proposition a bit too broadly and may at times

be somewhat misleading.”

It was also observed that the father's fitness has to

be considered, determined and weighed

predominantly in terms of the welfare of his minor

children in the context of all the elevant

circumstances. The father's fitness cannot override

considerations of the welfare of the minor children.

57. In our opinion, in such cases, it is not the

“negative test” that the father is not “unfit” or

disqualified to have custody of his son/daughter that

is relevant, but the “positive test” that such custody

would be in the welfare of the minor which is

material and it is on that basis that the court should

exercise the power to grant or refuse custody of a

minor in favour of the father, the mother or any

other guardian.”

SLP (C) No. 28466 of 2023 Page 16 of 27

11. Furthermore, this Court in Gaurav Nagpal (Supra)

undertook a comprehensive and comparative analysis of laws

relating to custody in the American, English, and Indian

jurisdiction(s) and observed that the Court must construe the term

‘welfare’ in its widest sense i.e., the consideration by the Court

would not only extend to moral and ethical welfare but also

include the physical well-being of the minor children.

12. Accordingly, in view of the aforesaid, not only must we

proceed to decide the present lis on the basis of a holistic and all-

encompassing approach including inter alia (i) the socio-

economic and educational opportunities which may be made

available to the Minor Children; (ii) healthcare and overall-

wellbeing of the children; (iii) the ability to provide physical

surroundings conducive to growing adolescents but also take into

consideration the preference of the Minor Children as mandated

under Section 17(3) of the Act.

3

Furthermore, we are equally

conscious that the stability of surrounding(s) of the Minor

Children is also a consideration to be weighed appropriately.

4

13. In the present factual matrix, the minor children i.e., SSU;

and SSH have interacted with the Court(s) to express their

preference of guardian on a plethora of occasions. Accordingly,

3

Lahari Sakhamuri (Supra); and Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari,

(2019) 7 SCC 42.

4

Shazia Aman Khan and Ors. vs. The State of Orissa and Ors., 2024 INSC 163.

SLP (C) No. 28466 of 2023 Page 17 of 27

we consider it appropriate to briefly delve into the observations

of the Court(s) vis-à-vis the preference expressed by the Minor

Children:

13.1. The Learned Single Judge of the High Court engaged with

the Minor Children on 24.02.2020 i.e., SSU was

approximately 11.5 (eleven and a half) years old; and SHH

was approximately 8 (eight) years old. The Learned Single

Judge in his order dated 29.04.2020 recorded that he found

the Minor Children to be confident and well-groomed.

Furthermore, it has been categorically stated no overt

preference was indicated by the Minor Children in respect

to one parent over the other.

13.2. Thereafter, the Family Court engaged in a personal

interaction with the Minor Children on 11.08.2020 i.e.,

when SSU was approximately 12 (twelve) years old; and

SSH was approximately 8.5 (eight and a half) years old.

Pertinently, in Underlying Order, the Family Court

observed that the Minor Children expressed their

preference to reside with the Appellant. Additionally, it

was observed that the Minor Children were doing well in

the pursuit of their education and co-curricular activities

whilst residing with the Appellant; and that the Minor

Children were well-settled and progressing fine.

SLP (C) No. 28466 of 2023 Page 18 of 27

13.3. Subsequently, the Division Bench of the High Court

interacted with the Minor Children on two occasions i.e.,

(i) 23.08.2021; and (ii) 17.08.2022. Pertinently, the

Division Bench in an order dated 23.08.2021 observed that

the children were intelligent and reasonably grown up. On

the other hand, the Division Bench in the Impugned Order

observed that the Minor Children expressed their clear

desire to reside with the Appellant.

13.4. In the Supreme Court, we considered it necessary to

interact with the Minor Children ourselves. Accordingly,

vide an order dated 19.03.2024, we directed the Appellant

to produce the Minor Children in Court so as to enable us

to interact with them. On 05.04.2024, we interacted with

both SSU; and SSH in chambers. We found the Minor

Children to be intelligent, confident, cognisant of the pros

and cons of their decisions and most importantly content /

happy. During our interactions with the Minor Children,

despite probing the issue of guardianship on more than one

occasion, the Minor Children categorically stated that they

were happy and wished to reside with their father only i.e.,

the Appellant.

14. The natural and consequential deduction from the

aforesaid interaction(s) between the Minor Children and various

SLP (C) No. 28466 of 2023 Page 19 of 27

Court over a period spanning over 4 (four) years, is the

unwavering and strong desire of the children to continue to reside

with the Appellant. The aforesaid desire / preference although in

itself cannot be determinative of custody of the children, but it

must be given due consideration on account of it being a factor

of utmost importance.

15. Having settled the preference of the Minor Children, we

turn towards, the next leg of the analysis to be undertaken by this

Court in questions involving custody of children i.e.,

considerations of welfare of the children.

16. In the instant appeal, certain contentions were raised by

Ms. Sehgal in relation to the nature of employment of the

Appellant posing a challenge in the upbringing and welfare of the

Minor Children. We find ourselves unable to subscribe to the

aforesaid view, as we find that the Indian Armed Forces provides

a robust support system to the kin of its officer(s) so as to ensure

minimal disruption in the lives of the civilian member(s) of an

officer’s family. This support system includes residential

accommodation, a network of army schools, hospitals and

healthcare facilities. Moreover, various extra-curricular activities

i.e., sport(s) facilities and recreational clubs; and other social and

cultural functions are made available for the benefit of the kin of

officers of the Indian Armed Forces – the aforesaid support

SLP (C) No. 28466 of 2023 Page 20 of 27

system undoubtedly, aids in the mental stimulation, growth and

overall development of personality of a child.

17. At this juncture it would also be relevant to deal with the

main thrust of the argument put forth by Ms. Sehgal in relation

to the preference indicated by the Minor Children i.e., it was

contended that the present case is a classic case of PAS wherein

the Minor Children have been influenced against the Respondent;

and accordingly the preference indicated by the Minor Children

ought not to be considered representative of the true emotions of

the Minor Children. In view of the aforesaid, the decision of this

Court in Vivek Singh (Supra) was heavily relied upon to

substantiate her submission. The relevant paragraph is

reproduced as under:

“18. The aforesaid observations, contained in para

31 of the order of the High Court extracted above,

apply with greater force today, when Saesha is 8

years' old child. She is at a crucial phase when there

is a major shift in thinking ability which may help

her to understand cause and effect better and think

about the future. She would need regular and

frequent contact with each parent as well as

shielding from parental hostility. Involvement of

both parents in her life and regular school

attendance are absolutely essential at this age for

her personality development. She would soon be

able to establish her individual interests and

preferences, shaped by her own individual

personality as well as experience. Towards this end,

it also becomes necessary for parents to exhibit

SLP (C) No. 28466 of 2023 Page 21 of 27

model good behaviour and set healthy and positive

examples as much and as often as possible. It is the

age when her emotional development may be

evolving at a deeper level than ever before. In order

to ensure that she achieves stability and maturity in

her thinking and is able to deal with complex

emotions, it is necessary that she is in the company

of her mother as well, for some time. This Court

cannot turn a blind eye to the fact that there have

been strong feelings of bitterness, betrayal, anger

and distress between the appellant and the

respondent, where each party feels that they are

“right” in many of their views on issues which led

to separation. The intensity 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

viewpoint 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. 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:

SLP (C) No. 28466 of 2023 Page 22 of 27

(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

SLP (C) No. 28466 of 2023 Page 23 of 27

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

SLP (C) No. 28466 of 2023 Page 24 of 27

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

SLP (C) No. 28466 of 2023 Page 25 of 27

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

5

Recognised by this Court in Vivek Singh (Supra).

SLP (C) No. 28466 of 2023 Page 26 of 27

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.

Directions & Conclusions

27. In view of the aforesaid discussion, we consider it just and

appropriate that the custody of the Minor Children is retained by

the Appellant, subject to the visitation rights of the Respondent

as granted by the Family Court vide the Underlying Order i.e.,

the final order dated 22.08.2020.

SLP (C) No. 28466 of 2023 Page 27 of 27

28. The appeal is allowed in the aforesaid terms; the Impugned

Order is set aside. Pending applications, if any, stand disposed of.

No order as to cost(s).

……………………………………J.

[VIKRAM NATH]

……………………………………J.

[SATISH CHANDRA SHARMA ]

NEW DELHI

MAY 08, 2024