While affixing responsibility of parents towards their children, the Supreme Court most recently on February 18, 2020 in a latest, landmark and extremely laudable judgment titled Soumitra Kumar Nahar Vs. Parul Nahar in Civil Appeal No(s). 1670 of 2020 (Arising out of SLP (Civil) No(s). 6201 of 2016) With Civil Appeal No(s). 1671 of 2020 (Arising out of SLP (Civil) No(s). 16032 of 2016) has very vocally and rightly observed that the parental responsibility of the couple does not end even if there is a breakdown of marriage. It is the child who always suffer immeasurably and invaluably due to the ego clashes of the couple! This alone explains that why the Apex Court has very rightly sought to affix responsibility on the parents which they owe towards the child!
To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar by first and foremost observing after granting leave in para 1 that, “In a custody battle, 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 Court by its judicial process tells them to go with the parent whom he or she deems fit. It is a kind of dispute which has arisen initially from the Family Court and reached to this Court.”
Be it noted, para 3 then elucidates that, “The husband Soumitra Kumar Nahar assailed the order of the High Court of Delhi dated 4th September, 2015 which partly allowed the appeal with the direction to the wife Parul Nahar to comply with the consent terms qua the visitation rights of the appellant-husband Soumitra Kumar Nahar to meet son Master Shravan. At the same time visitation rights to meet the daughter Sanjana were declined. It was also observed that if the daughter wishes to meet her father, she can do so at her own desire.”
To put things in perspective, it is then mentioned in para 4 that, “Pending Civil Appeal @ Special Leave Petition (Civil) No. 6201 of 2016, a miscellaneous application was filed by the respondent Parul Nahar before the High Court of Delhi of which 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. It is unfortunate to notice that because of a warpath of the couple, both the paternal grandparents died during pendency of the proceedings.”
To put it succinctly, it is then pointed out in para 5 that, “Since the facts arise are almost common in both the appeals, we have noticed the relevant facts for our consideration from Civil Appeal @ SLP (C) No. 6201 of 2016.”
In hindsight, we need to now recapitulate the relevant facts here as have been discussed in para 6 which states that, “Appellant Soumitra Kumar Nahar and respondent Parul Nahar married as per Hindu rites and customs on 10th December, 2001. They were blessed with a baby girl “Sanjana” born out of the wedlock on 24th May, 2005 and a baby boy “Shravan” was born on 10th October, 2008. It manifests from the record that some trivial matrimonial differences cropped up after the second child was born in October, 2008 and it was unfortunate that the parties started making personal allegations and counter allegations against each other, that forced the appellant-husband to file Guardianship Petition No. 56 of 2011 on 15th April, 2011 under Sections 7, 8, 10 & 11 of the Guardian and Wards Act, 1890. Simultaneously, appellant filed a separate Divorce Petition bearing HMA No. 821 of 2011 in September, 2011 on the grounds of cruelty and adultery.”
Making matters worse, it is then pointed out in para 7 that, “The stage reached where the father of the appellant Soumitra Kumar Nahar filed a suit CS(OS) No. 2795 of 2011 before the High Court of Delhi impleading the appellant and respondent as a party praying for mandatory injunction against the respondent wife from entering into his self-acquired property.”
Due attention must be paid to what is then stated in para 8 that, “It is pertinent to mention here that appellant was residing along with his wife Parul Nahar and parents at B-197, Greater Kailash-I, New Delhi but because of compelling reasons, the appellant-husband and respondent-wife had to leave their matrimonial home and they shifted to the rented accommodation at M-24, Greater Kailash-I, New Delhi.”
After hearing the lawyers from both sides and perusing the material on record, the Bench then minces no words to state unequivocally in para 30 that, “It is indisputed that 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.”
Importantly, the Bench then also minces no words to send a simple straight and short message in para 31 that, “It is also well settled by the catena of judgments of this Court that while deciding the matters of custody of the child, primary and paramount consideration is always the welfare of the child. If the welfare of the child so demands, then technical objections cannot come in the way. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. 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.”
What’s more, it is then clarified in para 32 that, “At the outset, it may be noticed that the present dispute is nowhere related to the Divorce Petition No. HMA 821 of 2011 which has been filed at the instance of the appellant-husband pending before the competent Court of jurisdiction and indeed may be decided without being influenced by the observations made in the present proceedings independently in accordance with law.”
Simply put, the Bench then makes it known in para 33 that, “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.”
Most significantly, it is then made amply clear in para 34 that, “All the endeavours are to be made to resolve the matrimonial disputes in the first instance through the process of mediation which is one of the effective mode of alternative mechanism in resolving the personal disputes but if it could not make possible in resolving through the process of mediation, further endeavor must be made by the Court through its judicial process to resolve such personal disputes as expeditiously as possible. Delay in decision certainly cause a great loss to the individual and deprive him/her of their rights which are protected under the Constitution and with every passing day, 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 the peculiar facts of the present case, the High Court of Delhi, in the first instance, made effort after holding a separate and joint session with the parents along with the children but nothing fruitful came forward and when the litigation came to this Court, tireless efforts were made by this Court keeping in view the paramount interest of the children. The orders passed by this Court to which a reference has been made in detail indicates that it would always remain in the interest of the parties to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents came forward and the sufferings of the children are shadowed over it.”
Equally significant if not more is what is then stated in para 35 that, “It is an ideal situation where the grandparents remain in the company of their children and also of their grandchildren, but very few are fortunate to have this pleasure in the fag end of their life. In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grand children 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.”
Finally, before winding up, it is then observed in para 39 that, “To finally conclude, we would like to observe that the interim arrangement made by this Court regarding the custody/visitation rights of the parties vide order dated 7th 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 and taking note of the interest of the minor interest 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. At the same time Divorce Petition HMA No. 821 of 2011 shall be decided expeditiously as possible but in no case later than 31st December, 2020.”
Before closing, it would be in the fitness of things to once again say in simple and straight language that the essence of this extremely laudable judgment is that the interest of the child has to be accorded the paramount consideration and parental responsibility does not end with the breakdown of marriage. In other words parents cannot wash their hands off just by terming their marriage breakdown as “end of everything”! All Courts must always follow this laudable approach as laid down by the Apex Court in this noteworthy case!
Sanjeev Sirohi
