Child’s wish & will is important in a Child Custody matter: Hon’ble Supreme Court

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Section 17(3) was the guiding light to the Hon’ble Supreme Court in the matter of Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) wherein Hon’ble Court observed that while deciding the child custody matter the Court should also consider the preferences of the minor child if he or she is aged enough to form a well thought & intelligent choice.

The bench of Hon’ble Justices UU Lalit, Indu Malhotra and Hemant Gupta decided the matter. In this matter the child custody was awarded to the father who was based out in Kenya.

It was long legal batter between the parents from family court, to the high court to Hon’ble Supreme Court and with more than 10 years of legal struggle finally the father was able to get the custody of his boy Aditya.

It was interesting to note that Hon’ble judged met the child personally many times during the case proceedings to ascertain his inclination and preference. They also tried to understand child’s choice towards his family members.  

Hon’ble court quoted section 17(3) in the judgement and also observed the same principle in the instant case that the sole consideration should be to protect the interest and welfare of the child.

While considering the findings of the Family Court, the High Court and the Report of the Counsellor, Hon’ble Supreme Court found that the child showed more inclination towards his father and concluded that it would be in the best interest of the child to transfer custody to his father because if the preferences of the child were not given due regard, it could have an adverse psychological impact on the child.

Read the complete judgement from here:

https://main.sci.gov.in/supremecourt/2020/8161/8161_2020_34_1501_24506_Judgement_28-Oct-2020.pdf