JUDGMENT : A. HARI HARANADHA SARMA, J. Introductory:- 1. The petitioner in FCOP No.299 of 2021 on the file of the Family Court-cum-VII Additional District and Sessions Judge, Anantapuramu, prayed for the relief of custody of his children. Questioning the dismissal of his petition/application, under decree and judgment dated 01.08.2022, he has filed the present appeal. 2. Respondent is his wife. 3. For the sake of convenience, parties will be herein after referred to as the petitioner and the respondent, and children will be referred to as Minor No.1, Minor No.2 and Minor No.3 respectively. Case of the Petitioner :- 4. [i] Marriage between the petitioner and the respondent was solemnised on 26.10.2008 at Anantapur as per Hindu rights and customs. During the wed lock, the petitioner and respondent are blessed with Minor Nos.1 to 3. Minor No.1 and 2 are daughters, Minor No.3 is son. [ii] The application/petition filed by the petitioner for dissolution of marriage vide HMOP No.22 of 2018 was ended in decree in favour of the petitioner and the respondent did not choose to contest the same and it became final. [iii] Minor No.1 is staying with the petitioner, Minor Nos.2 and 3 are staying with respondent. [iv] Respondent has foisted a case in terms of Section 498-A IPC and Section 3 and 4 of Dowry Prohibition Act and the same was ended in settlement. [v] Father and mother of the respondent are working as coolies; the respondent is also attending some job, whereas the petitioner and his brother apart from his parents are residing jointly and they can provide good environment and education to the children with good amenities. Therefore, petitioner is eligible for the relief of custody of the children i.e., minor Nos.2 and 3. [vi] The respondent-wife did not choose to contest the case and remained ex parte before the Family Court. But the petition was dismissed. 5. Learned Judge Family Court, Anantapur dismissed the application on the following grounds:- (i) Decree of divorce in HMOP No.22 of 2018 is ex parte in nature. (ii) The respondent remained ex parte for the reasons best known to her in the present proceedings also. (iii) No independent witnesses are examined to prove the means of the petitioner. (iv) There is no evidence as to the status of the daughter staying with the petitioner particularly with regard to educational standard. (ii) The respondent remained ex parte for the reasons best known to her in the present proceedings also. (iii) No independent witnesses are examined to prove the means of the petitioner. (iv) There is no evidence as to the status of the daughter staying with the petitioner particularly with regard to educational standard. (v) Since the respondent remained ex parte, the Family Court is unable to pass any orders inviting the presence of children to know their interest and the Court has no opportunity to interact with the children. (vi) The petitioner failed to place any evidence to show his entitlement for the custody of the children, hence, petition fails. 6. Heard learned counsel on both sides. 7. Upon finding the necessity of conciliation between the parties and ascertaining the views of children in the best interest of the children, the parties were directed to appear before this Court along with children and accordingly they have appeared. 8. During the interaction with the children, we noticed the fairness and affection among the children inter se, although the parties i.e., wife and husband are not cordial against each other. 9. Upon hearing the both the parties, children as well as their counsel and on perusal of the material available on record, the points that arose for determination in this appeal are: 1) Whether the appellant/father is entitled for custody of Minor Nos.2 and 3, as prayed for? 2) Whether the impugned orders dated 01.08.2022 passed by the learned Judge, Family Court are sustainable in law and on facts or require any interference? if so, on what grounds and to which extent? 3) What is the result of the appeal? Point No.1 and 2 :- Precedential Guidance in respect of Child Custody issues:- 10. [i] In Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 : (2013) 2 SCC (Civ) 425 the Hon’ble Apex Court para 14 of the judgment observed that: “14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.” [ii] In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : 2008 SCC OnLine SC 1722 at page 56 Hon'ble Apex also held that: “48. Merely because there is no defect in his personal care and his attachment for his children—which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” [iii] In Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 : 2008 SCC OnLine SC 1216 at page 428 the Hon’ble Apex Court considered certain Principles governing custody of minor children at para 52 of the judgment, which reads as under:- “52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” [iv] Further in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42 : (2019) 3 SCC (Civ) 433 : 2019 SCC OnLine SC 713 at page 60 Hon’ble Apex Court also made similar observations at para 34 of the judgment that :- “34. As observed in Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 earlier, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. The welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child's ordinary comfort, contentment, health, education, etc. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable. The child Shikha lost her mother when she was just fourteen months and is now being deprived from the love of her father for no valid reason. As pointed out by the High Court, the father is a highly educated person and is working in a reputed position. His economic condition is stable. (4) This extract is taken from Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 : 2008 SCC OnLine SC 1216 at page 428 Principles governing custody of minor children 52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” [v] It is also observed, in J. Selvan v. N. Punidha, 2007 SCC OnLine Mad 636 by the Hon’ble Madras High Court, that issues common to all child custody disputes are: (a) continuity and quality of attachments, (b) preference, (c) parental alienation, (d) special needs of children, (e) education, (f) gender issues, (g) sibling relationships, (h) parents’ physical and mental health, (i) parents’ work schedules, (j) parents’ finances, (k) styles of parenting and discipline, (l) conflict resolution, (n) social support systems, (o) cultural and ethnic issues, (p) ethics values and religion. Though the prevailing legal test is that of the ‘best interests of the child’, the Courts have also postulated the “least detrimental alternative”, [vi] In respect of separated parents, often a child falls in the middle of the contest of loyalty, which psychologists term it as parental alienation syndrome. This aspect is considered by the Hon’ble Apex Court in Vivek Singh Vs. Romani Singh, (2017) 3 SCC 231 : (2017) 2 SCC (Civ) 1 : 2017 SCC OnLine SC 125 at page 244 at para 18, which reads as under: “18. The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years' old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are “right” in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellant's effort to get the child to give up her own positive perceptions of the other parent i.e. the mother and change her to agree with the appellant's viewpoint cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologists term it as “The Parental Alienation Syndrome” [ The Parental Alienation Syndrome was originally described by Dr Richard Gardner in “Recent Developments in Child Custody Litigation” The Academy Forum, Vol. 29, No. 2 : The American Academy of Psychoanalysis, 1985.] . It has at least two psychological destructive effects: (i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts. (ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.” Analysis, Reasoning and Findings:- 11. Facts not in dispute:- [i] Appellant and respondents are wife and husband. [ii] Parties are blessed with Minors 1 to 3 during the wed lock. Minor No.1, eldest daughter is staying with the father viz., the petitioner/appellant. Minor No.2 and 3- daughter and son are staying with the mother. [iii] The marriage between the petitioner and the respondent was dissolved by way of a decree in HMOP NO.22 of 2018. [iv] The wife did not chose to contest present the case in FCOP No.299 before the Family Court. Minor No.2 and 3- daughter and son are staying with the mother. [iii] The marriage between the petitioner and the respondent was dissolved by way of a decree in HMOP NO.22 of 2018. [iv] The wife did not chose to contest present the case in FCOP No.299 before the Family Court. [v] There are two minor daughters, one of them is staying with the father and another one is staying with the mother. [vi] Minor son is staying with the mother. [viii] Financial status of the respondent/wife is not placed on record. [ix] Financial ability of the appellant /husband to take care of the children is not disputed by any counter etc. 12. Wife and husband may separate and take divorce as per law. Certain rights and obligations of the parents towards the children are joint and they are not severable. So, it is well said that husband and wife can separate but mother and father cannot. The children will have certain rights against the father and mother jointly. Several duties are to be performed jointly by the parents such as performing certain ceremonies, and guiding the children stage wise and age wise, including performing marriage. Marriage is an institution with objective higher than mere biological relationship between two heterosexual individuals. There is some purpose beyond the individual needs, like maintaining the social order and fabric. 13. The emotional bond between the wife and husband fading for some reason is possible. But the emotional bond between the siblings, having shared the blood and genes from common parentage, remain for a long time. Sharing of children among the parents, like sharing of joint property among the shareholders, is not acceptable. The memories with siblings are matters reminiscence forever. Denying such solemn nectar among the siblings due to ego issues between the parents, is happening in several cases. There are several real life examples of siblings discharging parental duties. Custody of children and rights of parents, require examination not merely from the angle of parents. In fact, parental care is the right of the children. Particularly, to have the love of both parents together with good family bond, including that of siblings is the requirement of every child. For that purpose, the individual rights of the parents if any shall stand subservient to the rights of the children. 14. In fact, parental care is the right of the children. Particularly, to have the love of both parents together with good family bond, including that of siblings is the requirement of every child. For that purpose, the individual rights of the parents if any shall stand subservient to the rights of the children. 14. Unfortunately, the parents forget that the animosity they build against the other parent will one day turn against them too. The stress the child undergoes in the process of brain game among the parents is inexplicable. Therefore, the child under the custody of one parent is likely to get more disturbed than a child not in the custody of either of the parent. All these things shall be kept in view in focussing on the points relating to custody of the child. 15. Coming to the facts in the present case, in view of absence of counter by the wife, it can be taken that there is no dispute regarding the capacity of the husband to extend the required financial and other care to the children. We noticed that the child with the father is not against the mother. The children with the mother are not against their father. It is clear that love of children for their siblings is found pure, clear and natural. We found tears rolling in their eyes when they had interaction between them, which drives us to conclude that the bond between children is under clouds due to egoistic or other issues between the parents. Therefore, we feel it proper to make some arrangements as to visiting rights even among the children. Possibility of Handing over all the children completely to father:- 16. If all the children are completely handed over to the father, since they have concern for the mother, they will be losing the love of mother. It is not as if the mother is against the children or the children are against the mother. Therefore, complete custody of the three (3) minor children to the father, will not work completely, and that will be against their emotional bonding. Possibility of Handing over of all the minor children to the Mother:- 17. Firstly, mother has not claimed the custody of Minor No.1, eldest daughter, who is staying with the father. Therefore, complete custody of the three (3) minor children to the father, will not work completely, and that will be against their emotional bonding. Possibility of Handing over of all the minor children to the Mother:- 17. Firstly, mother has not claimed the custody of Minor No.1, eldest daughter, who is staying with the father. Secondly, the children with the mother i.e., Minors No.2 and 3 are interested in continuing their bond with their mother and eldest sister- Minor No.1 also, who is studying intermediate. It is possible that wisdom of Minor No.1 and maturity levels are going to increase within near future. Thirdly, she is found matured enough to understand the feelings of her minor siblings and also issues between the parents. Therefore, keeping the bond between the children intact is possible only when the track of the children with both parents remains intact. Handing over of all the (3) children to mother is neither prayed for nor necessary in the factual context of the case and also the socio economic context from which the mother hails. Continuing two children i.e., Minors 2 and 3, with mother and one child, i.e., Minor No.1 with the father:- 18. Almost for more than 05 years, Minors No.2 and 3 are with the mother and the Minor No.1 is with the father. Baring some countable instances of meeting in some functions, that too occasionally, there was no interaction between them. Some tutoring by one parent against the other parent is evident. Yet, good feelings of the children either towards the parents or towards their siblings are not lost. A level playing field for both parents to gain complete love of all the children, or for the children to have a choice to stay with either of the parent, is absent in view of long separation of parents. Completely shifting the children with the mother to father, or child with father to mother, is likely to further damage the situation. Therefore, while maintaining the status quo, providing visiting rights to parents and to the children among themselves will, work as a solution and that is the only option available before this Court. 19. Completely shifting the children with the mother to father, or child with father to mother, is likely to further damage the situation. Therefore, while maintaining the status quo, providing visiting rights to parents and to the children among themselves will, work as a solution and that is the only option available before this Court. 19. Upon considering the facts and circumstances in the present case and the feelings of children and parents, which we observed during personal interaction, we conclude that while the children presently staying with the mother can be continued with her, with the rider that the father shall have visiting rights. Likewise, the daughter (Minor No.1), who is residing with the father, will continue to stay with him, subject to the mother being provided access. However, with the scenario of father taking the minor No.1 to the mother’s place. Conclusions:- 20. In view of the discussions made above, points 1 and 2 framed are answered concluding that father is entitled for visiting rights only, as per the arrangement/scope mentioned below and the decree and judgment dated 01.08.2022 passed by the learned Family Court are liable to be set aside and petitioner/appellant is entitled for decree for visiting rights likewise mother is entitled to have reasonable access to Minor No.1. 21. In the result, the appeal is partly allowed as follows:- Reliefs:- [i] The decree and order dated 01.08.2022 dismissing FCOP No.299 of 2021 passed by the learned Family Court are set aside. [ii] FCOP No.299 of 2021 on the file of the Family Court, VII Additional District and Sessions Judge, Anantapuramu, is partly allowed with the following scope:- [iii] Minor No.1 will continue under the guardianship of father/petitioner/appellant and Minor Nos.2 and 3 shall continue under the guardianship of mother but there shall be visiting rights to the petitioner/father in respect of Minor Nos.2 and 3 and access to the respondent/mother in respect of Minor No.1 during the visits and all the children do have right to spend time together. Visiting arrangements:- a) Petitioner/father is entitled to visit i.e., on 4th Sunday of every month, to the place where the minor children Nos.2 and 3 are staying with the respondent. He shall take the minor No.1 also with him. Visiting arrangements:- a) Petitioner/father is entitled to visit i.e., on 4th Sunday of every month, to the place where the minor children Nos.2 and 3 are staying with the respondent. He shall take the minor No.1 also with him. b) The Minor 2 and 3 shall be handed over to the custody of the father and he is entitled to have the custody of them from morning 9.00 a.m. to 4.00 p.m. c) The father and all the three (3) children are entitled to spend time from morning 9.00 a.m. to 4.00 p.m., and he shall handover the Minors 1 to 3 (all the three children) at 4.00 p.m. to the mother. d) All the three (3) minors shall be allowed to be in the custody of the mother also for two hours, i.e., between 4.00p.m. to 6.00 p.m. Thereafter, minor No.1 will return along with father. e) Right of Minors No.2 and 3 for maintenance is independent of this arrangement. f) This arrangement shall commence from the month of December 2025. Follow-up:- [iv] The conduct of the parties as to compliance of the directions given above shall be informed to this Court after (4) months i.e., in the month of April, 2026 in the form of affidavit of both the parents before the Registrar (Judicial). [v] The matter shall be listed before this Court for noting compliance and conduct of the parties, on the last working day of April, 2026. [vi] After two years of above exercise, depending upon the conduct of the parties and compliance of the visiting arrangements made, further view can be taken, subject to parties approaching the Court concerned. [vii] There shall be no order as to costs. [viii] Before parting, we make it clear that, we are unable to accept the stand of the Family Court that, since the respondent in the case remained absent, the Court has no opportunity to have interaction with the children. Further, considering the same, we find it necessary to issue following directions in the form of guidance to the Courts handling child custody issues: (1) Parents and defacto guardians, under whose custody children are there, can be directed to attend Court along with the children for ascertaining the views of children by issuing summons. Further, considering the same, we find it necessary to issue following directions in the form of guidance to the Courts handling child custody issues: (1) Parents and defacto guardians, under whose custody children are there, can be directed to attend Court along with the children for ascertaining the views of children by issuing summons. (2) When the prosecution of interest of the minor is through the guardian/next friend, the Court is not powerless to summon production of children/minors as the views of a child/minor will operate as an important material. Inherent powers of a Civil Court can be invoked as there is no prohibition, particularly when taking the views of children is mandatory as per the settled law. (3) If necessary in befitting cases, coercive steps including seeking police assistance can be opted, particularly when it becomes necessary to ascertain whether the minor is under the custody of such person against the will of the minor. (4) The empathetical concerns as to involving in discussion with the children is necessary on the part of the Family Court. For that purpose, no straight jacket formula is possible but means and methods are to be adopted contextually by the Court. (5) However, the views of the children shall be tested with reference to the possibility of the tutoring by the parents with whom they are staying. [ix] Registrar General is directed to circulate a copy of this judgment to all the Family Courts and the other concerned Courts, for necessary guidance as to procedural aspects in child custody issues. [x] As a sequel, miscellaneous petitions pending, if any, shall stand closed.