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Synopsis

The Supreme Court has on May 8, 2024 said, in child custody matters, courts ought not to prematurely and without identification of individual instances of ‘alienating behaviour’, label any parent as propagator or potential promoter of such behaviour as this has far-reaching implications.

A bench of Justices Vikram Nath and Satish Chandra Sharma said, "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 so as to overcome the preference indicated by the minor children".

The apex court set aside the Delhi High Court's order of October 11, 2023, which partly allowed an appeal by a woman, working as a teacher in a reputed school against the Family Court's order that granted permanent custody of her two minor children-- 15-year-old daughter and 12-year-old son -- to their father, a serving Army Colonel.

Having interacted with the children, the bench noted their unwavering and strong desire to continue to reside with the appellant. 

"The 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," the bench said.

The appellant father led by senior advocate Vivek Chib contended that minor children had been residing with him for nine years. It was the desire of the minor children to continue to reside with him and the preference had been communicated by the children to various court from time -to-time including inter alia the high court.

He contended the high court proceeded on an erroneous assumption that the prolonged period of separation between the respondent and the minor children had subconsciously influenced them against the mother.

The mother, represented by Vandana Sehgal, contended the appellant had forcefully retained the children for a prolonged period of time.

She claimed the appellant had deliberately disenfranchised the minor children from their mother. It was vehemently contended that the present lis is a classic case of ‘parental alienation syndrome’ (PAS).

In the present case, the court said, it must proceed on the basis of a holistic and all encompassing approach including inter alia (i) the socio economic and educational opportunities for the children; (ii) healthcare and overall well being; (iii) the ability to provide physical surroundings conducive to growing adolescents but also take into consideration the preference of the children.

"Furthermore, we are equally conscious that the stability of surrounding(s) of the minor Children is also a consideration to be weighed appropriately," the bench said.

The court pointed out that the minor children had interacted with the courts to express their preference of guardian on a plethora of occasions.

The bench also interacted with both the children 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," the bench said.

The mother also raised questions over nature of employment of the appellant, claiming it posed a challenge in the upbringing and welfare of the minor children. 

Rejecting the contention, the bench said, "We find ourselves unable to subscribe to the view, as we find that the Indian Armed Forces provides a robust support system to the kin of its officers so as to ensure minimal disruption in the lives of the civilian members 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., sports 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 support system undoubtedly, aids in the mental stimulation, growth and overall development of personality of a child, the court said.

In the case, the bench noted the high court had observed that the possibility of the minor children having been influenced against the mother, could not be ruled out.

"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," the bench said.

"PAS is a thoroughly convoluted and intricate phenomenon that requires serious consideration and deliberation. In our considered opinion, recognising and appreciating the 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 Vs Romani Singh (2017)," the bench said.

In the case at hand, the bench said 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 them between the parents and thus, the foundation for any claim of parental alienation was clearly absent. 

The bench also pointed out that the materials on record suggested that the minor children were cognisant and aware of the blame game being played inter se the parties; and that they did not foster unbridled and prejudiced emotions towards the mother. 

"Accordingly, we find that the appellant could not have been said to have engaged or propagated ‘alienating behaviour’ as alleged by the respondent," the bench said.

The court held 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-father.