Does Parental Responsibility of a couple end with Divorce?

Falgu Mukati | Pravin Gandhi College of Law | 23rd February 2020 

Soumitra Kumar Nahar vs Parul Nahar, Civil Appeal NO(S).1671 OF 2020

Matter

 The present case is of a custody for children. This case had initially arisen in Family Court and had reached the Supreme Court. The husband Soumitra Nahar and wife Parul Nahar had a son Master Shravan and a daughter Sanjana. After the birth of their second child certain disputes cropped in the relationship, which led to unfortunate personal allegations and counter allegations. As a result, the husband filed Guardianship Petition under  Sections 7,8,10 and 11 of the Guardian and Wards Act, 1890. Thus, the wife filed a separate Divorce Petition on the grounds of cruelty and adultery. Thereafter, the appellant’s father filed a suit praying  for  mandatory  injunction against the respondent  wife from entering into his self-acquired property. Thus, the case of custody of children was fought by the couple in various courts and various different orders of consent were passed in this case.  

Appellant’s Contention

• It submitted that except the Divorce Petition HMA No. 821 of 2011, no other proceeding with reference to the custody of the minor children is pending in the competent court.
• At present both of the children are not in custody of either of the parents. Thus, the custody of both the minor children should be granted to him, since the children are living without either of the parent for quite a long time.
• It stated that the appellant should be allowed to make all provisions regarding to ensure the safety and security of the children and also take appropriate measures which are in the interest for upbringing of the children.

Respondent’s Contention

• It submitted that both the paternal grandparents of the children have passed away, and thus, there is no one as such who would have a positive influence on the children and who would look after the well-being and cultural growth of the children.
• There is no female member in the appellant’s house who could look after the needs and necessities of the daughter.
• The respondent should be permitted to withdraw her consent to the settlement which had been reached at one stage between the parties and recorded by the High Court of Delhi.
• The parents should not be arbitrarily denied access to their children and should be allowed to meet their children as per the rules of the college.
• Any foreign trips or major activities organised by the school wherein the children are required to participate must receive the consent of either of the parents.
• It submitted that the respondent should be allowed to view the academic reports and other extra-curricular accolades which was denied by the appellant.

Held

• the Court is of   the   view   that   the   interim arrangement which has been made by this court vide its Order dated 7^th 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 paramount interest of the children. 
• The consent which was recorded by the High Court of Delhi in its Order dated 1st March, 2013, will remain operative until the parties to the consent order jointly move an application for withdrawal of their consent.
• With regards to the question that the school authorities should obtain the consent of the parent for any educational/ recreational trip, and the financial constraint of the appellant which has led to the denial of basic etiquettes to the children can be examined or tried in the custody proceedings as and when filed by the concerned party. If such a grievance is raised before the appropriate forum under the law, certainly it may be looked into and may be decided independently without being influenced by the observations being made by this court expeditiously in accordance with law.

• The interim arrangement made by this Court regarding the custody/visitation rights of the parties vide order dated 7^th September, 2017 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.