A bench of Justices Ajay Rastogi and A.M. Khanwilkar said “While deciding the matters of custody of the child, primary and paramount consideration is always the welfare of the child. The courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.”
In a custody battle, the top court observed that no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price as they are shattered when the courts, through its judicial process, tells them to go with the parent whom he or she deems fit.
Facts of the case
The ruling came as the court heard a husband assailing the 2015 order of the Delhi High Court which partly allowed the appeal with the direction to the wife to comply with the consent terms, especially on the visitation rights of the husband to meet the son, who is now 11 years old. At the same time, visitation rights to meet the daughter, now 14 years old, were declined. It was also observed that if the daughter wishes to meet her father, she can do so at her own desire. In 2016, the Delhi High Court directed a psychotherapist to ascertain the relationship of the children with their father and paternal grandparents before they joined the sole custody of their mother. The civil matrimonial appeal was filed in the Apex Court, which held “The child pays heavy price of being deprived of the love and affection of their parents for which they were never at fault but are always the loser which at no stage could be compensated monetarily or otherwise.” In 2017, the Apex Court ruled, against the backdrop of a strained relationship between parents, that for the time being, it is in the interest of the children to be sent in a boarding school, as at this stage, it is not in their interest to have the exclusive company of either their father or their mother. The top court also made interim arrangements regarding custody/ visitation rights of the parents. While disposing the appeals, the top court said that its 2017 order shall continue until further orders and the parties are at liberty to take steps in filing of a custody/guardianship petition for the minor children before the competent court of jurisdiction. “And taking note of the interest of the minor children as a paramount consideration being the sufferers of the matrimonial discord, if such an application is filed by either of the party, that may be decided by the court independently without being influenced/ inhibited by the observations made in the instant proceedings expeditiously in accordance with law,” said the top court. Over the hearings, this Court noted the exemplary efforts of Senior Advocate, Mr. Salman Khurshid who appeared for the respondentwife to enable the children to spend time with their father with a sanguine hope that when the relations will improve, visitation rights may be extended for both the children to the father. It reveals that the efforts made by this Court could not bring any congeniality between the spouse and the Court was constrained to pass an Order keeping in view the paramount interest of thechildren to place both the children in boarding school as it was not in their best interest to continue with either parent.
Submissions from both the parties
Learned counsel for the appellanthusband submits that apart from the substantive Divorce Petition arising from the wedlock which has been filed at his instance is pending before the competent Court of jurisdiction, no other proceedings in reference to custody of the minor children is pending in any other Court of law at present and both the children are not in custody of either of the parents. Although the appellanthusband make a request that, in the present facts and circumstances, the guardianship of both the minor children be handed over to him as they are living separately from both the parents for quite some time and if he is unable to persuade this Court in taking the custody of the minor children, liberty may be granted to him to file a separate guardianship petition before the competent authority and the interim arrangement made by this Court may remain subject to the outcome of the stated petition, if any, being filed by either party regarding custody of the minor children.
Learned counsel for the respondentwife, on the other hand, has opposed the submissions made by the appellanthusband and submits that both the paternal grandparents of the children have recently passed away and there is no one who may have a positive influence on the children and who may contribute and ensure their wellbeing and cultural growth. Further, there is no female member in the house to look after the growing daughter at present and atleast she may be permitted by the school administration to have a glimpse of her beloved children to which she is entitled for under the law as their mother. At the same time, learned counsel for the respondentwife made further submission seeking direction to the authorities to the effect that access to the children must be provided to both the parents as per the school rules, and either of the parent must not be arbitrarily denied access to the children and at least her consent must also be obtained for any foreign trips or any other major activities arranged by the school which the children may participate in for which the consent of the parents is required. At the same time, she may also be permitted to see the report cards and other extra curricular accolades which due to the appellanthusband are not available to her. So far as the custody of the minor children is concerned, an endeavor was made by the High Court in the first instance to resolve the inter se dispute between the parents keeping in view the paramount interest of the children as they are entitled to the love and affection of both the parents but if the parents are bent upon to lead to a separation or divorce, it is always the children who pay the heaviest price and are the sufferers. If the parents fail to enable themselves to decide their inter se disputes particularly in reference to custody of minor children, the Court, after due scrutiny of the records of the case, reaches to any conclusion that always remain a guess work.
The submission made by the learned counsel for the respondentwife to put certain additional conditions over the school authorities and obtaining her consent for any educational/ recreational trip of the children and the financial status of the appellanthusband which is spoiling the habits and upbringing of the children as they are leaving behind the basic etiquettes of life, there may be some substance in the submission made but that issue will have to be examined or tried in the custody proceedings as and when filed by the concerned party.
To finally conclude, to observe that the interim arrangement made by this Court regarding the custody/visitation rights of the parties and further subsequent orders shall continue until further orders with the liberty to the parties to take steps in filing of a custody/guardianship petition for the minor children before the competent Court of jurisdiction and taking note of the interest of the minor children as a paramount consideration being the sufferers of the matrimonial discord, if such an application is filedby either of the party, that may be decided by the Court independently without being influenced/inhibited by the observations made in the instant proceedings expeditiously in accordance with law.
……J. (A.M. KHANWILKAR)
…….J. (AJAY RASTOGI) NEW DELHI
February 18, 2020
Edited by Pragash Boopal
Approved & Published – Sakshi Raje