Section 17(3) of the Guard and Wards Act, 1890, which specifies that the Court will accept the interests of a child if he/she is old enough to shape the intelligent choice, was added to the Supreme Court in a decision on trans-national child custody.
It was observed by the Court that “As per Section 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”.
A three-judge bench comprising of judges UU Lalit, Indu Malhotra, and Hemant Gupta (2:1), allowed the custody of the child to his father in Kenya after personal interactions with the child were conducted. The interactions were conducted with the child in Chambers during the pendency of the proceedings to assess the desires and wishes of the child.
It was restated by the Apex Court in the case of Smriti Madan Kansagra v. Perry Kansagra that the primary and paramount concern in implementing the parens patriae would be to protect the interest and welfare of the child.
Therefore, different considerations had to be weighed by the Court to determine what was in the best interests of the child. It has been noted that the leading factors were laid down in the case of Nil Ratan Kundu v. Abhijit Kundu (2018) and were also set down under Section 17 of GWA.
The Court ruled out that the custody of the minor in this case be subjected to the “overall consideration of the holistic growth of the child, which has to be determined based on his preferences as mandated by Section 17(3)..”. The court noted that some concerns could be discerned from the Court’s contact with the minor and that the preference of the child could be vital to assist the Court in arriving at a judgment on the matter of its custody.
The Supreme Court took the view as per Section 17(3) that in the better interest of the child it would be in his dad's best interest to move custody even that if desires were not given sufficient consideration it would have a negative psychological effect on the child, given the important significance of children's preferences in deciding the custody question of the minor.
The court observed that "Given the various personal interactions which the courts have had at different stages of the proceedings, from the age of 6 years, till the present when he is now almost 11 years old, we have concluded that it would be in his best interest to transfer the custody to his father. If his preferences are not given due regard to, it could have an adverse psychological impact on the child".
The concept of “minor order” was also applied when determining the custody to the father located in Kenya. Justice Hemant Gupta, thus, dissented from the judgment and held that the custody of the child should remain with his mother in New Delhi.