Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 717 OF 2013

JITENDER ARORA & ORS. .....APPELLANT(S)

VERSUS

SUKRITI ARORA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Marriage between appellant No. 1 (hereinafter referred to as

the 'appellant') and respondent No. 1 (hereinafter referred to as

the 'respondent') was solemnized sometime in the year 1999,

which was got registered with the Registrar of Marriages,

Faridabad on 14.12.1999. The parties lived thereafter till March

2000 in Faridabad. However, carrying this notion that great future

lies for them out of India, the couple shifted to U.K. on

23.03.2000. Ms. Vaishali Arora was born out of this wedlock on

14.01.2002. Career-wise or financially, whether the couple was

better off in U.K., is not known. However, the soil of U.K. certainly

Criminal Appeal No. 717 of 2013 Page 1 of 23

Page 2 did not prove conducive to their matrimonial relationship which,

with the passage of time, turned bad to worst and from sweet to

savoury to bitter. So much so, legal battles started between them.

Eschewing the details in this behalf which are not needed and can

be avoided for the sake of brevity, suffice is to mention that

respondent has taken decree of divorce from the Court in U.K.

Likewise, appellant who had shifted to India along with Vaishali in

2010, filed the petition for divorce and has obtained decree of

divorce against the respondent. Both the divorce decrees are

ex-parte against each other. Fact remains, which is to be

emphasised, that the appellant and respondent have put an end

to their matrimonial alliance and the aforesaid move on their part

clearly depicts that both of them wanted divorce from each other.

That is the reason that the aforesaid ex-parte divorce decrees are

not questioned by any of them.

2.As it happens in such cases, an acrimonious and charged up

battle between the appellant and the respondent has got

concentrated upon the custody of Vaishali Arora. Though the

couple had moved to U.K. on 23.03.2000, Vaishali was born on

14.01.2002 in Holy Family Hospital, Delhi. The respondent had

Criminal Appeal No. 717 of 2013 Page 2 of 23

Page 3 come to India when she was pregnant and shortly after her birth,

she went back along with the appellant and the new born child.

Vaishali came to India in July, 2002 to stay with her paternal

grandparents in Faridabad and went back to U.K. in January,

2003. Matrimonial discord started erupting between the parties

thereafter. Since both of them were having their permanent jobs,

the services of Katie Bradbury, a Child Minder were obtained by

them when Vaishali was merely 13 months old. In July, 2004,

both husband and wife and their child were granted permanent

resident status of U.K. Thereafter, the parties had been coming

to India off and on quite regularly. Vaishali was admitted in a

school in Camberley, U.K. In July, 2007, Vaishali came to India

and joined Manav Rachna International School where she studied

upto March, 2008. Thereafter, she again went back to U.K. where

she was admitted in a school. On 07.02.2007, Pushti, second

daughter, was born to the parties. Thereafter, the matrimonial

relationship between the appellant and the respondent became

more bitter and abusive. Respondent alleged the acts of

domestic violence perpetrated upon her by the appellant. Surrey

Social Services Department investigated into the issues of

domestic violence. During this period, the impact of adverse

Criminal Appeal No. 717 of 2013 Page 3 of 23

Page 4 relations between the spouses upon their child Vaishali was also

studied from psychological point of view by the officer of the said

Department and reports given from time to time.

3.In June, 2007, Vaishali was issued Indian Passport by Indian

High Commission in London. On 04.08.2007, the appellant came

to India. As pointed out above, Vaishali had already come to

India and was admitted in a school in July, 2007. The appellant

and Vaishali remained in India till April, 2008. Even the

respondent decided to move back to India with her parents.

However, on 13.04.2008, the appellant went back to U.K. The

respondent remained in India and went back to U.K. in May,

2009. On reaching U.K., she lodged a complaint with the police

on 13.05.2009 to trace the whereabouts of Vaishali. Thereafter,

she filed a case in the U.K. Court in which, on 04.06.2009, an

ex-parte order was passed prohibiting the appellant from

removing two minor children from England and Wales. Further,

restraint order was passed against the appellant from removing

Vaishali from attendance at Alwyn Infants School where she was

studying at that time. The appellant filed cross application and it

led to further legal tussle between the parties wherein the Court

Criminal Appeal No. 717 of 2013 Page 4 of 23

Page 5 passed orders from time to time. It is in November, 2009 that the

respondent filed divorce proceedings against the appellant in a

Court in U.K. wherein she has been granted decree of divorce.

On 24.11.2009, as aforesaid, the appellant shifted to India along

with Vaishali. In their absence, the respondent obtained British

Citizenship of Vaishali on 13.07.2010.

4.Since the appellant had come to India with Vaishali, the

respondent filed Habeas Corpus Petition bearing Criminal Writ

Petition No. 712 of 2010 in the High Court of Punjab & Haryana

wherein she impleaded, apart from the appellant, his parents as

well as Vaishali, as respondents. Other parties who were made

respondents were State of Haryana, Senior Superintendent of

Police, Haryana and Station House Officer, Police Station City

Faridabad, Haryana. This petition has been allowed by the High

Court vide judgment dated 25.05.2010 directing the appellant to

handover the custody of Vaishali to her mother i.e. the

respondent. It is this judgment which is impugned in the present

proceedings.

5.It would be noticed that in May, 2010, when the petition was

allowed, Vaishali was almost 8½ years of age. Today, she is 15

Criminal Appeal No. 717 of 2013 Page 5 of 23

Page 6 years old.

6.The Special Leave Petition (which is converted into the instant

appeal after the grant of special leave) was filed immediately after

the passing of the impugned judgment by the High Court, which

came up for hearing on 02.06.2010 before the Vacation Bench of

this Court. While issuing notice in the petition, this Court stayed

the operation of the aforesaid judgment of the High Court. That

stay order has remained in operation, as a consequence whereof

custody of the child continues to be with the father. The

respondent, of course, has been granted visitation rights from

time to time as and when she came to India and moved an

application in this behalf. Such visitation rights have normally

been for the entire period of her stay in India on these visits,

which range from seven days to even two months. This fact is

highlighted to show that the respondent is given access to child

for long periods as well, the details whereof are mentioned

hereafter.

7.When the case came up before this Court on 31.01.2013 (at that

time, Vaishali was 11 years of age), the Bench (comprising of

Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet

Criminal Appeal No. 717 of 2013 Page 6 of 23

Page 7 Vaishali in order to interact with her to ascertain her view point.

Thereafter, the matter came up for hearing on 02.04.2013 when

the following order was passed:

“In the proceedings held on January 31, 2013, it

was agreed between the parties and was also

noted in the order passed on that date that the

child Vaishali should stay with respondent No.1

(Sukriti Arora), the mother of the child at her

residence in Delhi for one month under monitoring

by this Court.

In continuation of that order, therefore, we

direct that Vaishali should stay with her mother,

tentatively for one month from today, subject to

any further direction that may be passed by this

Court in the meanwhile. The address of

respondent No.1 where she will stay with her

daughter Vaishali is 6578, Sector-C, Pocket-6&7,

Vasant Kunj, Delhi and her contact number

(mobile)is:9968661822.

Ms. Madhavi Divan, one of the counsel

representing the petitioner shall hand over the child

to her mother-respondent No.1 outside the court

room after we complete the passing of this

order.

Respondent No.1 shall deposit her

passport with the Registrar (J-III) of this Court

which shall be returned back to her after Vaishali

goes back to her father on completion of the term

of her stay with respondent No.1.

We are informed that Vaishali's school is

reopening from April 4, 2013. On behalf of

Respondent No.1, it is stated that she will ensure

that the child reaches the school in time and is

brought back to her residence after school hours.

The child's stay with her mother will, in no way,

affect her attendance at the school or her studies.

Criminal Appeal No. 717 of 2013 Page 7 of 23

Page 8 During her stay with the mother, the child

will be free to speak to her father on telephone

(Mobile No. 9968661822). On behalf of

respondent No.1, it was stated that she would not

create any obstruction in the way of the child

speaking to her father.

During the child's stay with her mother, we

would like some responsible and competent person

to monitor the arrangement. We, accordingly,

request Mrs. Sadhana Ramachandran, who works

for the Delhi High Court Mediation and Conciliation

Centre, to monitor the arrangement on behalf of

this Court. Mrs. Ramachandran shall visit the

mother and the child at the address noted above

on a date and time of her convenience. She would

inform respondent No.1 on her mobile phone about

the proposed date and time of her visit to the

respondent's place. She would see how the

relationship between the child and the mother is

developing and if need be, she would counsel both

the child and the mother.

If the father wants to visit the child while she

is staying with her mother, he may do so at a

time when Mrs. Sadhana Ramachandran is also

present there. For the purpose of the visit he will

have to take the necessary permission from

Mrs. Ramachandran.

It is submitted on behalf of Respondent

No.1 that she would like to take the child to some

resort or some hill station for a brief holiday. We

would like the mother and the child to stay in Delhi

itself but, in case, both the child and the mother

together wish to go outside, they may do so subject

to the permission in writing taken from Mrs.

Ramachandran.

Mrs. Ramachandran would submit a

report to this Court within ten days from today.

Let this matter be listed for further direction

along with the report from Mrs. Ramachandran on

April 12, 2013.”`

Criminal Appeal No. 717 of 2013 Page 8 of 23

Page 9 8.Mrs. Sadhana Ramachandran, who monitored the arrangement

as per the directions contained in the aforesaid order submitted

her report. On going through that report, further order dated

15.04.2013 was passed in the matter and we reproduce that

order as well in its entirety:

“Seen the report submitted by Mrs. Sadhana

Ramachandran.

This Court is thankful to Mrs.

Ramachandran for giving her valuable time and

attention and for acting as the counselor and

the Court's agent in this arrangement.

We note that under the exigencies of the

situation, the mother and the child have shifted

from the address noted in the previous order and

are now living at the following address:

Ms. Sukriti Arora,

C/o. K.D. Prasher

C-2633, Sushant Lok Phase – I,

Gurgaon (Haryana).

The shift has been made with the

permission of Mrs. Ramachandran and with the

consent of the father of the child.

The arrangement made by order dated

April 02, 2013 may continue for a period of one

month from that date as indicated in that order.

It is, however, made clear that while

staying with her mother, the child Vaishali can

speak to her father and to Mrs. Ramachandran

as and when she wishes.

Both the petitioner and the respondent are

directed to pay heed to the advice of Mrs.

Criminal Appeal No. 717 of 2013 Page 9 of 23

Page 10 Ramachandran and take part in mediation, as

suggested by her, with an open mind.

List on May 01, 2013.

Before that date, Mrs. Sadhana

Ramachandran is requested to submit a final

report.”

9.On 01.05.2013, this Court took note of the fact that the

respondent was leaving for U.K. In these circumstances,

direction was given to her to return the custody of Vaishali to her

father i.e. the appellant. The aforesaid background needs to be

kept in mind while deciding this custody dispute.

10.We have gone through the entire record, including the orders

passed by the Courts in U.K. from time to time in various

proceedings. In a recent judgment pronounced on 13.02.2017

delivered by this Court in the case of Vivek Singh v. Romani

Singh, of which one of us (A.K. Sikri, J.) was the member of the

Bench, dilemma of the Court and the law on the subject was

taken note of. We reproduce the following paras of the said

judgment in order to make it self-contained in all respects:

“7. We have given our utmost serious consideration

to the respective submissions which a case of this

nature deserves to be given. In cases of this

nature, where a child feels tormented because of

the strained relations between her parents and

ideally needs the company of both of them, it

Criminal Appeal No. 717 of 2013 Page 10 of 23

Page 11 becomes, at times, a difficult choice for the court to

decide as to whom the custody should be given.

No doubt, paramount consideration is the welfare

of the child. However, at times the prevailing

circumstances are so puzzling that it becomes

difficult to weigh the conflicting parameters and

decide on which side the balance tilts.

8. The Hindu Minority and Guardianship Act, 1956

lays down the principles on which custody disputes

are to be decided. Section 7 of this Act empowers

the Court to make order as to guardianship.

Section 17 enumerates the matters which need to

be considered by the Court in appointing guardian

and among others, enshrines the principle of

welfare of the minor child. This is also stated very

eloquently in Section 13 which reads as under:

“13. Welfare of minor to be paramount

consideration.

(1) In the appointment or declaration of

any person as guardian of a Hindu minor

by a court, the welfare of the minor shall be

the paramount consideration.

(2) No person shall be entitled to the

guardianship by virtue of the provisions of

this Act or of any law relating to

guardianship in marriage among Hindus, if

the court is of opinion that his or her

guardianship will not be for the welfare of

the minor.”

9. The Court in the case of Gaurav Nagpal v.

Sumedha Nagpal

1

stated in detail, the law relating

to custody in England and America and pointed out

that even in those jurisdictions, welfare of the minor

child is the first and paramount consideration and

in order to determine child custody, the jurisdiction

exercised by the Court rests on its own inherent

equality powers where the Court acts as 'Parens

1

(2009) 1 SCC 42

Criminal Appeal No. 717 of 2013 Page 11 of 23

Page 12 Patriae'. The Court further observed that various

statutes give legislative recognition to the aforesaid

established principles. The Court explained the

expression 'welfare', occurring in Section 13 of the

said Act in the following manner:

“51. The word “welfare” used in Section 13

of the Act has to be construed literally and

must be taken in its widest sense. The

moral and ethical welfare of the child must

also weigh with the court as well as its

physical well-being. Though the provisions

of the special statutes which govern the

rights of the parents or guardians may be

taken into consideration, there is nothing

which can stand in the way of the court

exercising its parens patriae jurisdiction

arising in such cases.

52. The trump card in the appellant's

argument is that the child is living since

long with the father. The argument is

attractive. But the same overlooks a very

significant factor. By flouting various

orders, leading even to initiation of

contempt proceedings, the appellant has

managed to keep custody of the child. He

cannot be a beneficiary of his own wrongs.

The High Court has referred to these

aspects in detail in the impugned

judgments.”

10. We understand that the aforesaid principle is

aimed at serving twin objectives. In the first

instance, it is to ensure that the child grows and

develops in the best environment. The best

interest of the child has been placed at the

vanguard of family/custody disputes according the

optimal growth and development of the child

primacy over other considerations. The child is

often left to grapple with the breakdown of an adult

institution. While the parents aim to ensure that the

child is least affected by the outcome, the

inevitability of the uncertainty that follows regarding

the child’s growth lingers on till the new routine

Criminal Appeal No. 717 of 2013 Page 12 of 23

Page 13 sinks in. The effect of separation of spouses, on

children, psychologically, emotionally and even to

some extent physically, spans from negligible to

serious, which could be insignificant to noticeably

critical. It could also have effects that are more

immediate and transitory to long lasting thereby

having a significantly negative repercussion in the

advancement of the child. While these effects don’t

apply to every child of a separated or divorced

couple, nor has any child experienced all these

effects, the deleterious risks of maladjustment

remains the objective of the parents to evade and

the court’s intent to circumvent. This right of the

child is also based on individual dignity.

11. Second justification behind the 'welfare'

principle is the public interest that stand served

with the optimal growth of the children. It is well

recognised that children are the supreme asset of

the nation. Rightful place of the child in the

sizeable fabric has been recognised in many

international covenants, which are adopted in this

country as well. Child-centric human rights

jurisprudence that has been evolved over a period

of time is founded on the principle that public good

demands proper growth of the child, who are the

future of the nation. It has been emphasised by

this Court also, time and again, following

observations in Bandhua Mukti Morcha v. Union

of India & Ors.

2

:

“4. The child of today cannot develop to be a

responsible and productive member of

tomorrow's society unless an environment

which is conducive to his social and physical

health is assured to him. Every nation,

developed or developing, links its future with

the status of the child. Childhood holds the

potential and also sets the limit to the future

development of the society. Children are the

greatest gift to humanity. Mankind has the best

hold of itself. The parents themselves live for

them. They embody the joy of life in them and

2(1997) 10 SCC 549

Criminal Appeal No. 717 of 2013 Page 13 of 23

Page 14 in the innocence relieving the fatigue and

drudgery in their struggle of daily life. Parents

regain peace and happiness in the company

of the children. The children signify eternal

optimism in the human being and always

provide the potential for human development.

If the children are better equipped with a

broader human output, the society will feel

happy with them. Neglecting the children

means loss to the society as a whole. If

children are deprived of their childhood —

socially, economically, physically and mentally

— the nation gets deprived of the potential

human resources for social progress,

economic empowerment and peace and order,

the social stability and good citizenry. The

Founding Fathers of the Constitution,

therefore, have emphasised the importance of

the role of the child and the need of its best

development.”

12. Same sentiments were earlier expressed

in Rosy Jacob v. Jacob A. Chakramakkal

3

in

the following words:

“15. ...The children are not mere

chattels : nor are they mere

play-things for their parents. Absolute

right of parents over the destinies and

the lives of their children has, in the

modern changed social conditions,

yielded to the considerations of their

welfare as human beings so that they

may grow up in a normal balanced

manner to be useful members of the

society...”

13. It hardly needs to be emphasised that a

proper education encompassing skill

development, recreation and cultural activities

has a positive impact on the child. The

children are the most important human

resources whose development has a direct

3(1973) 1 SCC 840

Criminal Appeal No. 717 of 2013 Page 14 of 23

Page 15 impact on the development of the nation, for

the child of today with suitable health, sound

education and constructive environment is the

productive key member of the society. The

present of the child links to the future of the

nation, and while the children are the

treasures of their parents, they are the assets

who will be responsible for governing the

nation. The tools of education, environment,

skill and health shape the child thereby

moulding the nation with the child equipped to

play his part in the different spheres aiding the

public and contributing to economic

progression. The growth and advancement of

the child with the personal interest is

accompanied by a significant public interest,

which arises because of the crucial role they

play in nation building.”

11.In the case of Vivek Singh, the girl was 8 years of age. There

also, the child had remained with father for most of the period. It

was decided to give the custody to the mother. Among others,

two weighty reasons which prevailed with this Court were the age

of the child, i.e. 8 years, and that during this period, custody had

remained with the father because of no fault of the mother. This

is clear from the following discussion in the said judgment:

“14. In the instant case, the factors which weigh in

favour of the appellant are that child Saesha is

living with him from tender age of 21 months. She

is happy in his company. In fact, her desire is to

continue to live with the appellant. Normally, these

considerations would have prevailed upon us to

hold that custody of Saesha remain with the

appellant. However, that is only one side of the

picture. We cannot, at the same time, ignore the

other side. A glimpse, nay, a proper glance at the

Criminal Appeal No. 717 of 2013 Page 15 of 23

Page 16 other side is equally significant. From the events

that took place and noted above, following

overwhelming factors in favour of respondent

emerge.

(a) For first 21 months when the parties were living

together, it is the respondent who had nursed the

child. The appellant cannot even claim to have an

edge over the respondent during this period, when

the child was still an infant, who would have

naturally remained in the care and protection of the

respondent - mother, more than the appellant –

father. Finding to this effect has been arrived at by

the High Court as well. This position even

otherwise cannot be disputed.

(b) The respondent was forcibly deprived by the

custody of Saesha from August 04, 2010 when she

was forced to leave the matrimonial house. As per

the respondent, on that date the appellant in a

drunken state gave beatings to her and threw her

out of the house. The respondent had called the

police. The police personnel called the military

police and a complaint was lodged. The

respondent had also called her parents who had

come to her house from NOIDA. Her parents took

hold of the child and the appellant and when they

were about to leave, the appellant pulled out the

child from the hands of her mother and went inside

the house and locked himself. He was drunk at

that time. The police suggested not to do anything

otherwise appellant would harm the child. It was

assured that the child would be returned to her in

the morning. In any case, the respondent and the

appellant were instructed to come to the police

along with the child, next morning. The appellant

did not bring the child and threatened that he would

not give the child to her. Since then, she had been

running from pillar to post to get the child back but

respondent had been refusing.

The respondent, therefore, cannot be

blamed at all, if the custody of the child remained

with the appellant, after the separation of the

parties.

Criminal Appeal No. 717 of 2013 Page 16 of 23

Page 17 (c)Within the few days, i.e. on August 26,

2010, the respondent filed the petition seeking

custody of the child and for appointment of her

guardian. She did not lose any time making her

intentions clear that as a natural mother she

wanted to have the custody of the child. It was her

mis-fortune that the trial court vide its judgment

dated December 07, 2011 dismissed her petition.

Though, she filed the appeal against the said

judgment immediately, but during the pendency of

the appeal, the custody remained with the

appellant because of the dismissal of the petition

by the Family Court. The High Court has, by

impugned judgment dated April 02, 2013 granted

the custody to the respondent. However, the

respondent has not been able to reap the benefit

thereof because of the interim orders passed in the

instant appeal. It is in these circumstances that

child Saesha from the tender age of 21 months has

remained with the appellant and today she is 8

years and 3 months. Obviously, because of this

reason, as of today, she is very much attached to

the father and she thinks that she should remain in

the present environment. A child, who has not

seen, experienced or lived the comfort of the

company of the mother is, naturally, not in a

position to comprehend that the grass on the other

side may turn out to be greener. Only when she is

exposed to that environment of living with her

mother, that she would be in a position to properly

evaluate as to whether her welfare lies more in the

company of her mother or in the company of her

father. As of today, the assessment and perception

are one sided. Few years ago, when the High

Court passed the impugned judgment, the ground

realities were different.

xxx xxx xxx

16. 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

Criminal Appeal No. 717 of 2013 Page 17 of 23

Page 18 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...”

12.The circumstances, in the present case, however, are materially

different. Vaishali is a mature girl of 15 years of age. At this age,

she can fully understand what is in her best interest. She is

competent to take a decision for herself. There has been

interaction with her by different Benches of this Court from time to

time, outcome whereof is reflected in the orders passed after

such meetings. She has unequivocally and without any

reservations expressed her desire to be with her father. More

importantly, she has very categorically said that she does not

want to go to U.K.

13.On 31.01.2013, this Court had noted that when her mother came

to India, she was not even willing to meet her. However, with the

intervention of the Court, a meeting was arranged between

Vaishali and her mother. Even after the said meeting, she was

not willing to live with the respondent, her mother. Fully realising

Criminal Appeal No. 717 of 2013 Page 18 of 23

Page 19 that it may be due to the reason that all this period, she had lived

with her father, the Court deemed it proper to give opportunity to

the respondent to win love, confidence and trust of Vaishali. The

mother was allowed to stay for one month with Vaishali. This

order was continued on 02.04.2013 by extending the period by

another month. This time the arrangement that was made was to

be monitored by Mrs. Sadhana Ramachandran who was

appointed for this purpose. Specific job given to Mrs. Sadhana

Ramachandran was to see how the relationship between the child

and the mother is developing. In case of need she was to

counsel both the child as well as the mother. Thus, an

opportunity was given to the respondent by allowing her the

access of Vaishali for significant period i.e. till 01.05.2013,

whereafter the child was restored back to her father, since the

respondent had decided to go back to U.K. It is unfortunate that

even during this period, she was not able to influence the thought

process of Vaishali who is determined to remain with her father.

14.In fact, during the course of arguments before us, when the

respondent was also present, we asked the respondent as to

whether she could shift to India, even temporarily for a year or so,

Criminal Appeal No. 717 of 2013 Page 19 of 23

Page 20 as in that eventuality, the Court can consider giving custody of

Vaishali to her for that period. However, she expressed her

inability to do so. She wants custody of Vaishali on her own

terms. She wants Vaishali to come to U.K. and live with her.

Vaishali does not want to go to U.K. at all. This Court cannot take

the risk of sending Vaishali to a foreign country, against the

wishes of a mature girl like Vaishali, as it may prove to be a

turbulent and tormenting experience for her. That would not be in

her interest.

15.We also had interaction with Vaishali in the Chambers earlier. On

the date of hearing also, Vaishali was present in the Court and in

front of her parents, she unequivocally expressed that she was

happy with her father and wanted to continue in his company and

did not want to go with her mother, much less to U.K. From the

interaction, it is clearly discernible that she is a mature girl who is

in a position to weigh the pros and cons of two alternatives and to

decide as to which course of action is more suited to her. She

has developed her personality and formed her opinion after

considering all the attendant circumstances. Her intellectual

characteristics are adequately developed. She is able to solve

Criminal Appeal No. 717 of 2013 Page 20 of 23

Page 21 problems, think about her future and understands the long term

effects of the decision which she has taken. We also find that she

has been brought up in a conducive atmosphere. It, thus,

becomes apparent that in the instant case, we are dealing with

the custody of a child who is 15 years of age and has achieved

sufficient level of maturity. Further, in spite of giving ample

chances to the respondent by giving temporary custody of

Vaishali to her, respondent has not been able to win over the

confidence of Vaishali. We, therefore, feel that her welfare lies in

the continued company of her father which appears to be in her

best interest.

16.The High Court in the impugned judgment had stated that since

Vaishali was a minor girl, she needed company of her mother

more to understand girly things. The High Court mentioned about

the bond between girl child and mother in abstract and from there

only the High Court came to the conclusion that it would be better

to give the custody to the mother. The High Court did not go into

the specific situation and circumstances of this case and did not

make any objective assessment about the welfare of Vaishali.

Many circumstances which we have narrated above were not

Criminal Appeal No. 717 of 2013 Page 21 of 23

Page 22 taken note of.

17.On the facts of the present case, we are convinced that custody

of the child needs to be with father. She is already 15 years of

age and within 3 years, she would be major and all this custody

battle between her parents would come to an end. She would

have complete freedom to decide the course of action she would

like to adopt in her life. We, thus, allow this appeal and set aside

the judgment of the High Court.

No costs.

.............................................J.

(A.K. SIKRI)

.............................................J.

(R.K. AGRAWAL)

NEW DELHI;

FEBRUARY 17, 2017.

Criminal Appeal No. 717 of 2013 Page 22 of 23

Page 23 ITEM NO.1A COURT NO.8 SECTION IIB

(For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No. 717/2013

JITENDER ARORA & ORS. Appellant(s)

VERSUS

SUKRITI ARORA & ORS. Respondent(s)

Date : 17/02/2017

This appeal was called on for pronouncement of judgment

today.

For Appellant(s)

Mr. S. S. Jauhar, Adv.

For Respondent(s)

Mr. Viresh B. Saharya, Adv.

Mr. Birendra Kumar Choudhry, Adv.

Mr. Sanjay Kumar Visen, Adv.

Hon'ble Mr. Justice A. K. Sikri pronounced the

judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice R. K. Agrawal.

The appeal is allowed in terms of the signed

reportable judgment.

In view thereof, pending applications, if any,

stand disposed of.

(Nidhi Ahuja) (Mala Kumari Sharma)

Court Master Court Master

[Signed reportable judgment is placed on the file.]

Criminal Appeal No. 717 of 2013 Page 23 of 23