Child’s Age, Circumstances During Separation With Parent Relevant To Determine Its 'Intelligent Preference' While Appointing Guardian: Delhi HC

Observing that a child is the worst victim where there is acrimonious relationship between the parents, the Delhi High Court has said that a minor’s age and the surrounding circumstances of the period of separation from a parent are relevant while considering his or her 'intelligent preference'.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna made the observation while referring to Section 17(3) of the Guardians and Wards Act, 1890, which states that while appointing a guardian, court may consider preference of a minor in case he or she is old enough to form an “intelligent preference”

The bench ruled that the provision is “couched in directory language” and the court cannot always be dictated by what the child states to be his preference.

“It is a common knowledge that where acrimony permeates in the relationship between the husband and the wife, the worst victim is the child who is directly or indirectly impacted or affected by the acrimonious relationship and is also tutored against the separated parent. While considering the intelligent preference of such a child, not only the age of the child is material but also the surrounding circumstances of the period of separation and the reasons stated for disinclination to meet the appellant/father also assume relevance,” the bench said.

The court made the observations while setting aside a family court order dismissing a father’s plea seeking visitation rights for a 13 year old minor child. He sought that the minor child be brought to the children’s room to meet him.

The couple got married in December 2004 and a son was adopted by them. The parties got separated in 2021, and the custody of the child was exclusively with the mother since then. The father then filed a petition under Section 9 of the Guardians and Wards Act, 1890, seeking custody of the minor son.

In August last year, the father was permitted to pick up the child on every Sunday from the mother’s house and drop him back after two hours. Vide the impugned order which was passed on May 22, the family court observed that the child was having sufficient maturity to decide the meeting with the father and found that there existed no ground to direct minor’s production in the Children’s Room for meeting.

While setting aside the impugned order, the court said that the child had been in joint custody of the both the parents who were residing together till about 11 years.

In these two years, it is apparent that because of the differences between the parents, the child has also been impacted, the bench noted.

Furthermore, the court said that it is not in the interest and welfare of the child if he gets deprived of the love and affection as well as guidance of his father solely because of the differences between the parents.

“This is more so when the parties and the child were together till about two years back. The father is not a stranger but is well known to the child having been together for eleven years. Two years time gap cannot be considered sufficient for total alienation for the child to turn totally averse to even meet the father. The role of mother to help forge and restore the lost/ diminished affection between the father and the child assumes greater significance,” the court said.

It added that it would be in the interest and welfare of the child if the meetings initially were directed to be held in the court to help restore the cordiality, confidence and affection between the estranged father and the son.

“We hereby direct that the child be produced to the Children’s Room in the Court Complex, Saket Courts, New Delhi on every first and third Saturday from 03:00 P.M. to 05:00 P.M. for interaction with the appellant/father. Further, the meetings be facilitated in the Children’s Room in the presence of the Counsellor. In case, the child is unable to come on any Saturday or it is a Court’s holiday on the said Saturday, the meeting shall be held on the next working Saturday, or the same may be compensated on any other day, subject to the convenience of both the parties,” the court said.

The bench also directed the mother to make every endeavour to ensure that the child is able to restore his strained relationship with his father.

The court granted liberty to the father The to seek modification of the said arrangement by moving appropriate application before the family court, when sufficient rapport and comfort is established inter se him and the minor.

Advocates Ashok Kumr Chabbra, Pawan Kumar Mittal and Sunita Pal appeared for appellant.

Advocates Aditya Ranjan and Jyoti Rana represented the respondent.

Title: ABC v. XYZ

Citation: 2023 LiveLaw (Del) 854