PURVI MUKESH GADA v. MUKESH POPATLAL GADA INSC 731

NAME OF CASE PURVI MUKESH GADA v. MUKESH POPATLAL GADA INSC 731 FACTS The appellant and respondent had separated in 2013 after a number of years of marriage and procreation of 2 children, Taney (17) and Varenya (13). The separation, as claimed by the appellant was on the ground of gross mental and physical cruelty, including verbal and physical abuse and occult practices. When the appellant left her marital home in Pune to go to her parents’ house in Mumbai, the kids were in the custody of the respondent. Despite the appellant demanding custody of the children continually, the respondent refused. When Taney who was admitted in a boarding school, failed his class 9 examination, the respondent handed the children to the appellant for the purpose of tutoring them for a duration of 3 days. Following the end of the said 3 days, the respondent claimed that the appellant refused to return the custody of the children to which the appellant claimed that this decision was that of the children and that they refused to go back, and the appellant had no influence in this decision. Subsequently, the respondent filed an application before the Court of Additional ACMM for restoration of custody of the children. Post interaction with the children, the ACMM granted custody to the appellant mother. The respondent retaliated with an appeal filed at the sessions court, which upheld the decision of the ACMM by providing similar grounds as reasoning. The respondent then filed an appeal at the high court wherein the court allowed the appeal and held that in spite of the respondent handing the custody of the children without any court order on humanitarian means, the appellant failed to return the custody of the children, thus the court directed that custody of the children be restored with the respondent. This case is an appeal filed in the Supreme court for the custody of the 2 children which has been a long ongoing legal battle. ISSUE 1. Custody Determination and Welfare of the Children 2. Compliance with Court Orders 3. Children’s Preferences and Parental Influence 4. Parental Rights vs. Welfare Principle HOLDING The appeal is allowed in the Supreme Court, resulting in setting aside of the impugned order dated February 17, 2016 passed by the High Court in the writ petition and restoring the order dated August 06, 2015 passed by the Court of Sessions, Greater Mumbai, which affirmed the order dated July 01, 2015 passed by the Court of 38th Court of Additional ACMM, Ballard Estate, Mumbai. Additionally, weekend access given to the respondent by interim directions of this Court shall continue to prevail. Moreover, during Dussehra, Diwali, Christmas or summer vacations etc., the respondent shall be entitled to avail the custody for half of the durations of those vacations. However, while effecting this arrangement, it shall be ensured that studies of the children are not affected. In case of any difficulty in working out the aforesaid modalities, the parties shall be at liberty to approach the trial court. Since the custody of the children is allowed to be retained by the appellant-mother, domicile certificates of the children as well as their passports which are with the respondent, shall be handed over to the appellant. RATIONALE Supreme Court rejected the verdict of the high court claiming that the perspective of the high court with which it has looked at this case is erroneous. The claim of the high court that the respondent dropped the children with the appellant on a humanitarian basis is incorrect and that is proven in the statement that Taney failed his grade 9 examination and needed the appellant to tutor him so he could pass his re-examination and the respondent confirms this statement. Another fact the court noted was that, under the guidance and tutoring of the appellant, Taney passed his re-examination and also started performing much better in his academics in a new non-boarding school in Mumbai while staying with the appellant. The grades of Varenya also showed significant improvement under the custody of the appellant. This fact also gives some credence to the version of the appellant that because of his pre-occupation in the business or otherwise, the respondent was not in a position to take personal care of the children and, therefore, he put both of the children in the boarding schools. Apart from this, one key aspect the court took note of is the willingness of the children to reside with their appellant mother. Beyond all arguments and facts lies the welfare of the children and the supreme court held that the decision taken by the ACMM which was further upheld by the sessions court was based on the interaction with the children, considering their willingness and decision to choose which parent they want to stay with. The supreme court additionally held that Taney being 17 years of age and Varenya being 13 years can be considered to be physical, emotionally and psychologically mature to take their own decisions. The children did not mention anything negative about their father and wanted their respondent father to be in touch with them but when questioned about who they want to reside with and be under the custody of, the appellant was their choice. <ref>MANU/SC/1151/2017<ref>