Courts should decide the issue of a custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle

Kosha Doshi | Symbiosis Law School, Pune | 27th March 2020

Soumitra Kumar Nahar v. Parul Nahar [Civil Appeal No. 1670 of 2020]

Facts:

A couple had trivial matrimonial differences arising soon after the the birth of their second child in the year 2008. Personal allegations led the husband to file Guardianship Petition under the Guardian and Wards Act, 1890. Further a suit was filed for divorce on grounds of adultery and cruelty. 

The husband, Soumitra Kumar Nahar on the 4^th of September, 2015 challenged the decision of the Delhi High Court wherein the wife, Parul Nahar was partially allowed to comply with the consent terms in regard to the visitation rights to meet their daughter Sanjana and son Shravan. Rights to meet daughter were declined and it was observed that if the daughter wishes to meet her father she could do so. 

            An order came to be passed on 12th May, 2016 directing Dr. Achal Bhagat (Psychotherapist) to ascertain the background facts regarding the relationship of the children with their father Soumitra Kumar Nahar and paternal grandparents before they joined the sole custody of their mother. However, the parental grandparents died before the judgment was passed.

Judgment:

            The case was decided on 18^th of February 2020 wherein the case was heard by a bench comprising of Justice AM Khanwilkar and Justice Ajay Rastogi. The court held that no matter which parent wins in a custodial conflict, the child is the loser and pays the heaviest price. The judicial process shatters the child and makes a choice for the child as to who is the better and fitter parent. 

The rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute. 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.

In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grandchildren and because of this matrimonial tussle between the parties, they have lost their lives. It is a message to the litigating parties to introspect and take stock of their deeds and find out a reasonable amicable solution of the on­going matrimonial discord to secure peace and of their better future.

An interim arrangement which has been made by this Court vide its Order dated 7th September, 2017 and orders passed thereafter shall continue with a liberty to the parties to file independent proceedings for the custody or guardianship of the minor children before the competent Court of jurisdiction which, if instituted, may be decided independently in accordance with law and that alone would be in the best interest of the children.