A mother of a six-year-old son has challenged the Order of the High Court of Allahabad that granted the custody of the child to the father and only allowed supervised visitation rights to the mother for two nights.
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A Supreme Court Bench of Justices Aniruddha Bose and Augustine George Masih has passed an interim direction in a mother’s plea to have unsupervised visitation rights over her six-year-old son for two nights.
Brief facts
The parents got married in January 2016. However, things went wrong for the applicant (the mother) as she allegedly faced abuse from her husband and his family.
When she got pregnant and had a son in 2017, she decided to give a chance to their marriage. However, the harassment reportedly continued and in 2020, she started living with her parents.
At that time, the mother tried to return to education and got into a PhD programme. She had to leave for Spain as part of her doctorate. This was allegedly disapproved of by her husband and his family.
When she informed the father of her intention to take the child with her to Spain and even arranged education facilities for the child, the father reportedly wrote an email to the Spain embassy against it.
In the meanwhile, she left for Spain in October 2021. The child stayed behind with its maternal grandparents. In October itself, the father registered a first information report (FIR) against the grandparents for abducting his son. Because of this, the mother had to come back to India.
After the preliminary investigation, the police found the complaint to be false and the FIR was closed.
When the mother left for Spain again, the child was allegedly abducted at gunpoint by the father and his brother on December 4, 2021. Since then, the child has been in the custody of the father in Bareilly.
When the mother came back four days after the alleged abduction, she first approached a family court in Bareilly because the police did not register a complaint saying that she needed documents that could verify that the mother had legal right to the custody of the child.
On February 7, 2023, the family court held that the child was illegally abducted from the custody of maternal grandparents.
The Order stated: “By forcefully snatching away his own son, the opposition has acted against the law and by doing such an act, he has not done any good to the child because this incident must have had an adverse effect on his mind.”
The family court ordered that the child be returned to the guardian, who is the mother in this case. It allowed the father to contact the child twice every month at any time by giving 24 hours notice to the mother.
This Order was challenged before the High Court of Allahabad. Considering the welfare of the child of paramount importance, on March 28, 2023, the high court overturned the Order passed by a family court in Bareilly that granted custody of the child to the mother.
In considering this, the court concluded that if the child desires to stay with the father, he should be allowed to do so. Allowing him to stay with his mother had caused an adverse psychological impact on him, the court stated.
However, the high court granted supervised visitation rights to the mother, including the right to keep the child with her over weekends and fortnightly, and also take him on vacations.
The mother has filed a petition before the Supreme Court seeking to challenge the Order of the high court.
The plea seeks the custody of the child. As interim relief, the mother claims that despite the Order granting visitation rights, the father is allowing very limited access to the child to the mother.
As per the petition, the applicant, along with her mother, managed to meet the child for two hours in a mall in Bareilly in August this year.
She stated that before parting, the child asked her, “They asked me to tell you that I do not miss you but how do you know that I miss you?”
After the meeting, the father sent an email to the mother stating: “Only you are allowed to come and meet him. Not any other person like this time.”
The petitioner states that she could not meet her son on his sixth birthday on July 17, 2023.
The petitioner argues that the interim custody of the child is “absolutely necessary” in the interest of the welfare of the child.
According to the mother’s plea, there should not be any supervised visitation for the child to interact with the mother freely.
She relies on the Supreme Court judgment of Vivek Singh versus Romani Singh (2017).
In this judgment, the court recognised what is called “the parental alienation syndrome”.
The court described it as a first, putting the child squarely in the middle of a contest of loyalty to choose a preferred parent.
It said: “No matter whatever the choice, the child is very likely to end up feeling painfully guilty and confused.”
Second, the child is required to make a shift in assessing reality. The court explained this as: “One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics.”
What does the law say?
The Guardianship and Wards Act, 1890, is a secular legislation which defines the guardian as a person having the care of the child till the person turns 18 years old.
Although the legislation does not explicitly mention to whom the natural guardianship is conferred, secondary legislation and legal precedent usually favour the father.
However, under the Hizanat rule, Muslim mothers have custody rights in the case of boys till they turn seven years old and in the case of girls till they reach puberty.
The provisions are subject to the court’s perception of what is best for the child.
In 1980, the Law Commission of India, in its report The Guardianship and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 recommended that an amendment must be made to the Guardianship and Wards Act to confer the custody of the child till the minor completes 12 years to mother.
What did the Supreme Court say?
The Supreme Court division Bench granted interim visitation rights to the mother for weekends during the pendency of the petition challenging the custody of the child granted to the father.
The court stated that it is necessary for the child to spend time with mother without anyone watching them over continuously.
The next hearing is scheduled on December 12. However, the respondent has requested for the court to take up the matter in January 2024.
Click here to read the order.
