Supreme Court: In an appeal by a father challenging the order passed by Madras High Court on 4-10-2018 upholding the previous orders of dismissal wherein, the father sought revocation of an order which required handing over of custody of the child to his mother, the Division Bench of Vikram Nath and Rajesh Bindal*, JJ. after due consideration of the situation allowed continuation of the child’s custody with his father but allowed the mother to call the child and have visitation rights.
Factual Background
The instant matter relates to a dispute pertaining to the custody of a child born on 18-02-2011 to the couple who got married on 16-05-2010. Matrimonial dispute arose between the husband and wife which led the husband to file a divorce petition in 2014, while the wife filed a complaint to claim maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’).
In addition, it was prayed that the child’s interim custody be granted to the wife, which was allowed vide order dated 22-05-2014 and the husband was directed to hand over custody of the child to his wife. The husband applied for revocation of the said order handing over the child’s custody to the mother, which was dismissed. Such dismissal was challenged before the District Judge, which again got dismissed, and the revision petition before the High Court also upheld the dismissal orders. Therefore, the child’s father approached the Court through the instant appeal.
Court’s Understanding of Child Custody to Father
The Court foremost pointed out that while in fact there was no stay on the order directing the husband to hand over the child’s custody to the mother, the same was not complied with. And that the proceedings for child custody were initiated in May 2014, and the husband was directed to hand over the child’s custody to his wife vide order dated 22-05-2014, when the child was 3 years and 3 months old, but all these years, the child’s custody remained with the husband, i.e., the child’s father.
Perusing the record regarding dispute, the Court noted that for exploring the possibility of settlement of dispute, the matter was referred to the High Court’s Mediation Centre on 2-12-2019, and the Mediator’s report reflected that the wife was not ready to mediate, and that the child then aged 9 years and 9 months was unwilling to go with his mother.
During the Bench’s interaction with the child on 19-10-2023 in the presence of both the parents in the Court, the child flatly refused not only to go with his mother but even talk to her. The Court highlighted the fact that from the very beginning, the child was living with his father. It went on to express that “In any matrimonial dispute, it is always the child/children who bear the brunt. For proper growth of a child, love and affection of both the parents is necessary. In any matter of custody of child, his welfare is paramount consideration.” Keeping regard with the said aspect and the attitude of the child, the Court further directed Senior Counsel Ms. V. Mohana to interact with the child and parents at different times, who also counselled them.
The Counsel’s report revealed that several attempts were made to break the ice. Initially, the child was averse even to see his mother, and after Ms. Mohana apprised him regarding the importance of a mother, he reluctantly agreed to sit with his mother, but with minimal interaction. The Court noted that he was stated to be an intelligent child. The child initially agreed to meet his mother twice a year, but later consented for a monthly meeting at a public place and also allowed phone calls by his mother.
Conclusion
The Court was of the view that “It is always good for the upbringing of the child that he has love and affection of both the parents”, but in the instant case, the child remained deprived of the love and affection of his mother from the initial time. Though the child may continue to live with his father as he was residing since birth, he may also get his mother’s affection. The Court kept it open for the parties to mutually decide the day, time and venue of meeting as per convenience.
Considering Ms. Mohana’s suggestions to make an effort through the High Court’s Mediation Centre for an interaction of the child with a Counsellor, and the child being averse to visiting the Court, the Bench suggested to plan such counselling at a place other than the Court Complex. It further viewed that the child being aged 12 years and 9 months’ old, was in a position to take decisions. The Court opined that it was not in the interest of the child’s upbringing to grant his custody to the mother at this stage but gave the mother calling and visitation rights.
[Selvaraj v. Revathi, 2023 SCC OnLine SC 1644, Decided on 6-12-2023]
Judgment authored by: Justice Rajesh Bindal
Know Thy Judge | Supreme Court of India: Justice Rajesh Bindal
Advocates who appeared in this case :
For Petitioners: Advocate on Record M.P. Parthiban, Advocate Priyaranjani Nagamuthu, Advocate R. Sudhakaran, Advocate T. Hari Hara Sudhan, Advocate Shalini Mishra, Advocate Bilal Mansoor, Advocate Shreyas Kaushal
For Respondents: Advocate M. Yogesh Kanna, Advocate S. Prabu Ramasubramanian, Advocate Raghunatha Sethupathy B, Advocate Bharathimohan M, Advocate Priya R, Advocate S. Sabari Bala Pandian, Advocate Santhosh K., Advocate M. Vishal Sundaramughan, Advocate Manoj Kumar A., Advocate Preethi G., Advocate Vasu Kalra, Advocate on Record K. Paari Vendhan
