In a significant ruling on child welfare in custody proceedings, the Uttarakhand High Court set aside a Family Court order that had permitted the production of a ten-year-old child as a witness. The Court held that calling a minor child to testify in a custody dispute adversely affects psychological growth and is unnecessary when the court can informally interact with the child under Section 17(3) of the Guardians and Wards Act, 1890.
Background & Facts
The Dispute
The dispute arises from custody litigation between Preeti Mishra (mother) and Gaurav Mishra (father) over their ten-year-old son. The father, as respondent, filed application 98C2 before the Family Court, Dehradun seeking to produce the child as a witness in the custody petition. The mother, as appellant, objected contending that examining the child would harm his psychological development and was irrelevant to determining custody.
Key Facts
- The child is ten years old and presently resides with the respondent father.
- The appellant submitted objection 100C2, stating the child might be under the influence of the father and should not be examined as a witness.
- The Family Court, by order dated 13 August 2026, allowed the father’s application and permitted the child to appear as a witness.
- The appellant challenged this order on the grounds of child welfare and psychological impact.
- The underlying custody case is Family Court Case No. 18 of 2024 (Preeti vs. Gaurav).
Procedural History
- 13 August 2026: Family Court, Dehradun passed order allowing application 98C2 and directing production of the minor child as a witness (Case No. 18 of 2024).
- Following the order, the appellant filed objection 100C2 opposing the child’s examination.
- The appellant then preferred the present appeal under Section 19 read with Section 10 of the Family Courts Act, 1984 and Section 47(i) of the Guardians and Wards Act, 1890.
- The appeal was heard by a Division Bench of the Uttarakhand High Court comprising Hon’ble Manoj Kumar Tiwari, J. and Hon’ble Pankaj Purohit, J.
- Judgment reserved and delivered on 10 September 2026.
Relief Sought
The appellant sought to set aside the Family Court order dated 13 August 2026, to prevent the child from being examined as a witness, and to allow the Presiding Judge to interact informally with the child to ascertain his preference under Section 17(3) of the Guardians and Wards Act, 1890.
The Legal Issue
The central question was whether a minor child whose custody is the subject matter of litigation can be compelled to appear as a witness in a custody petition, and whether such examination is permissible under Section 17(3) of the Guardians and Wards Act, 1890 when the child’s welfare and psychological impact are considered.
Arguments Presented
For the Appellant
The appellant contended that calling a ten-year-old child to testify would adversely affect his psychological growth and was unnecessary. Reliance was placed on the Supreme Court decision in Nil Ratan Kundu & another vs Abhijit Kundu, reported as 2008 (9) SCC 413, which emphasized that informal interaction by the judge suffices to ascertain a child’s preference. The appellant further argued that the child’s testimony would not be relevant to determining which parent should obtain custody, citing the Thrity case [(1982) 2 SCC 544] to show that frequent judicial interviews of minors disturb them rather than provide relief.
For the Respondent
The respondent’s counsel, Mr. Karan Anand, did not support the Family Court order and conceded that the court could interact informally with the child to reach a just conclusion. No substantive counter-argument was advanced; the respondent essentially agreed that the child’s welfare required a non-adversarial approach.
The Court's Analysis
The Court began by reiterating the paramountcy of child welfare in custody disputes, drawing from Nil Ratan Kundu. It observed that the Thrity case had clarified that calling minor children frequently in chambers by judges was improper and disturbed them rather than giving respite. The Court then turned to Section 17(3) of the Guardians and Wards Act, 1890, which empowers the court to interview a minor child to consider his/her preferences. The Court held that while the statute permits interaction, it does not mandate the child’s appearance as a formal witness. The Court noted that the child’s tender age (ten years) and his residence with the father raised concerns of undue influence, making testimonial evidence unreliable. Consequently, the Court found substance in the appellant’s contention that examining the child as a witness would have an adverse psychological impact and would not aid the custody determination. The Court emphasized that the Presiding Judge may, however, interact informally with the child to gauge his wishes, as expressly contemplated by Section 17(3). The Court therefore set aside the impugned order, preserving the judge’s discretion to engage in such informal interaction to arrive at a just conclusion regarding custody.
The Verdict
The appeal was allowed. The Family Court order dated 13 August 2026 that had permitted the production of the ten-year-old child as a witness was set aside. The Court directed the Presiding Judge to be at liberty to interact informally with the child to ascertain his preference for custody. No costs, compensation, or other monetary relief were awarded.
What This Means For Similar Cases
Child Welfare Paramount in Custody Proceedings
Practitioners must now foreground the child’s psychological well-being when opposing attempts to examine minor children as witnesses. Courts are likely to reject such requests unless a compelling reason is shown, and the welfare principle will override procedural convenience.
Informal Interaction Under Section 17(3) Is the Preferred Modus Operandi
The judgment affirms that Section 17(3) of the Guardians and Wards Act, 1890 provides a viable alternative to formal witness examination. Lawyers should seek directions for judicial interaction in chambers, preparing to present the child’s wishes in a non-threatening environment.
Limits on Judicial Interviewing of Minors
While the Court endorsed informal interaction, it echoed the Thrity caution that such interviews must not become frequent or intrusive. A single, sensitively conducted interaction suffices; repeated questioning may be deemed detrimental and could be challenged on welfare grounds.
