Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).1670 OF 2020
(ARISING OUT OF SLP(CIVIL) NO(S).6201 OF 2016)
SOUMITRA KUMAR NAHAR ………APPELLANT(S)
VERSUS
PARUL NAHAR …….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S).1671 OF 2020
(ARISING OUT OF SLP(CIVIL) NO(S). 16032 OF 2016)
J U D G M E N T
Ajay Rastogi, J.
1. Leave granted.
2. In a custody battle, no matter which parent wins but the child
Signature Not Verified
is always the loser and it is the children who pay the heaviest price
Digitally signed by
CHETAN KUMAR
Date: 2020.02.18
13:22:19 IST
Reason:
as they are shattered when the Court by its judicial process tells
1
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.
3. The husband Soumitra Kumar Nahar assailed the order of the
th
High Court of Delhi dated 4 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.
4. 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
th
passed on 12 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
2
of the couple, both the paternal grandparents died during pendency
of the proceedings.
5. 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.
6. Appellant Soumitra Kumar Nahar and respondent Parul Nahar
th
married as per Hindu rites and customs on 10 December, 2001.
They were blessed with a baby girl “Sanjana” born out of the
th
wedlock on 24 May, 2005 and a baby boy “Shravan” was born on
th
10 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 appellanthusband to file Guardianship
th
Petition No. 56 of 2011 on 15 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.
3
7. 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 selfacquired property.
8. It is pertinent to mention here that appellant was residing
along with his wife Parul Nahar and parents at B197, Greater
KailashI, New Delhi but because of compelling reasons, the
appellanthusband and respondentwife had to leave their
matrimonial home and they shifted to the rented accommodation at
M24, Greater KailashI, New Delhi.
9. The High Court of Delhi, after the matter being heard, passed
th
an Order on 5 February, 2013 granting interim mandatory
injunction in favour of the plantifffather directing the defendant
no. 1(Parul Nahar) to vacate the subject property being B197,
Greater KailashI, New Delhi and handover the peaceful possession
of the same to the plaintiff from the date of the order. The relevant
extract of the order is as under:
4
“ Interim mandatory injunction is therefore granted in favour
of the petitioner and against the defendant no.1. Defendant No.1 is
accordingly directed to vacate the subject property bearing No. B
197, Greater Kailash, PartI, New Delhi and hand over peaceful
possession of the same to the plaintiff within a period of one month
from the date of this order. It is further directed that concerned
Court seized with the petition filed by defendant No.1 under
Domestic Violence Act shall decide the interim application of
defendant No.1 for the grant of maintenance, which will include
her right to a residence in the commensurate property as per the
financial status of defendant No.2, within a period of one month
from the date of this order. Defendant No.1 in the meanwhile is
also set at liberty to shift to the rented accommodation as offered
by defendant No.2 for her exclusive residence along with her
children or to accept an amount of Rs.30,000 towards the amount
of rent, pending disposal of her maintenance application before the
concerned Metropolitan Magistrate/ Mahila Court.”
10. The order passed by the High Court granting interim
th
mandatory injunction dated 5 February, 2013 came to be
challenged by the respondentwife before the Division Bench in
FAO(OS) No. 129/2013. After the matter being heard, a consent
order came to be passed in terms of settlement recorded under
st
Order dated 1 March, 2013 as follows:
“It is thus read as under:
(i) The appellant states that the accommodation
occupied by respondent No.2 at present i.e. Second
Floor, M24, Greater Kailash – I, New Delhi of two bed
rooms fully furnished is acceptable to her for the
purpose of her residence and of her children. This
course of action being acceptable to respondent No.2,
the appellant agrees to move into the accommodation
within a period of 15 days from today. The natural
5
sequitor is that respondent no. 2 will move out of that
accommodation within the same period of time.
(ii) Respondent No.2 undertakes to this court to
continue to pay the rent, electricity and water charges
for the aforesaid premises and ensure that
accommodation is available to the appellant and the
children.
(iii) Respondent No.2 will pay appellant maintenance
@ Rs.60,000/ per month inclusive of the children and
their education expenses. Such payment should be
th
made on or before 7 day of each month. The
st
maintenance will commence from 1 March 2013.
(iv) The appellant and respondent No.2 also agree
that the issue of visiting rights be settled. It is thus
agreed that the appellant will make available the
children to respondent No.2 on every Saturday at
10.00 AM to be brought back at 10.00 AM on the
following Sunday.
(v) The appellant gives up her right and claim in the
suit property in view of the settlement arrived at.
(vi) It is further agreed that this interim
arrangement qua maintenance will continue to prevail
during the pendency of the divorce proceedings.”
11. The consent order of the High Court in terms of the settlement
st
dated 1 March, 2013 was not complied with by the respondent
wife and she did not vacate the house of father of the appellant
husband. The application was filed by the father of the appellant
wherein the High Court directed the appellanthusband to pay Rs.
1.5 lakhs to respondentwife to buy household items and also
6
clarified that the object of the consent order is clear that is to bring
to rest all other issues other than the divorce proceedings which is
to be completed within one year. Issue of maintenance, domestic
violence and the matters of custody and visiting rights stands
st
resolved by the consent order dated 1 March, 2013.
12. The appellanthusband thereafter filed an application before
the Family Court for implementation of the order of the High Court
and in its subsequent order, the High Court observed in its Order
th
dated 5 April, 2013 that if there is some problem in working out of
the visitation rights in view of the stated approach of the children,
directed the parties to settle the matter qua visitation rights before
the Delhi High Court Mediation Centre by taking assistance of the
child psychologist.
th
13. When the order of the Court dated 5 April, 2013 was not
carried out by the parties, the appellanthusband approached the
Family Court seeking necessary directions of visitation rights which
st
came to be rejected by the Family Court vide Order dated 21
December, 2013 that came to be challenged before the Delhi High
7
Court in Mat App(FC) No. 41/2014 and the High Court disposed of
th
the application vide Order dated 25 September, 2014, the relevant
extract reads as under:
“7. In these circumstances, we are compelled to direct as
follows:
[I] The parties shall appear before Ms. Veena
th
Ralli/Mediator on 27 September, 2014 at 11.30 A.M.
in the Delhi High Court Mediation and Conciliation
Centre to explore the possibility of negotiated
settlement by mediation. List for outcome of mediation
th
before court on 20 November, 2014.
[II] The children of the parties shall be produced
before Ms. Veena Ralli/Mediator in Samdhan, the
Delhi High Court Mediation and Conciliation Centre on
th
18 of October, 2014 at 11.00 A.M. Ms. Veena Ralli
shall facilitate free and healthy meetings between the
petitioner/father as well as grandparents of the
children keeping in view all the sensibilities and
welfare of the children in mind. The respondent shall
ensure that there is no obstruction or interference in
these meetings.
[III] Ms. Veena Ralli shall request any child
psychologist associated with the Centre to separately
have conselling sessions with the children and/or
parents as she would deem necessary on such date[s]
and times as are convenient.
[IV] An assurance is given to us by Mr. Prakash
Gautam, learned counsel for the respondent, that the
orders of this court shall be complied with in letter and
spirit.
[V] A direction is issued to the trial court dealing
with HMA No.821/2011 to proceed with the
completion of evidence in the case at the earliest, if
possible on day to day proceeding. The evidence of the
petitioner shall be completed within six months. The
8
evidence of the respondent shall be completed within
six months thereafter.
[VI] It is made clear that the pendency of any
application, including the application for enhancement
of maintenance filed by the respondent, shall not come
in the way of recording of the evidence. It is also made
clear that the pendency of the mediation shall not
interdict the trial of the case.
[VII] Let the trial court record be returned forthwith.”
th
14. After passing of the Order dated 25 September, 2014, the
appellanthusband yet moved two applications which are registered
as CM No. 3242 of 2015 in Mat App(FC) No. 41 of 2014 and CM No.
8858 of 2015 in Mat App(FC) No. 41 of 2014 and finally the
th
applications were partly allowed vide judgment dated 4 September,
2015, the extract is as under:
“28. Thus in view of the aforesaid discussion, the appellant partly
succeeds in his appeal. We accordingly direct the respondent to
comply with the terms of the mutual settlement in so far as the
visitation rights of the father appellant herein to meet Master
Shravan is concerned and in so far as granting visitation rights to
meet the daughter Sanjana is concerned, the same cannot be
allowed in the light of the aforesaid peculiar circumstances. It is,
however, made clear that nothing will come in the way of the
daughter, if she wishes to meet her father at any time or even to
visit him or stay with him as per her own wish and desire.
29. We are not inclined to delve into the legalities of the case and
neither do we feel the need to discuss the judgments relied upon
by both the parties as in the facts and circumstances of the
present case, a specific issue of visitation rights requires
consideration, and thus we are not limiting ourselves to legalistic
aspects.”
9
15. The judgment of the High Court became a subject matter of
challenge at the instance of the appellanthusband in Civil Appeal
arising out of SLP(Civil) No. 6201 of 2016.
16. Pending Civil Appeal arising out of SLP(Civil) No. 6201 of
2016, in Mat App No. 65 of 2015, the High Court of Delhi interacted
with the children and took assistance of Dr. Achal Bhagat,
th
Psychotherapist, and thereafter passed an Order dated 12 May,
2016 with a direction 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 and observed as follows:
“5. During the course of hearing, with the consent and on the
request of the parties, efforts had been made to explore the
possibility of resolution of issues relating to visitation of the
nd
children of the parties with the respondentfather. On the 22
January, 2016, in order to obtain independent expert opinion with
regard to the desirability of such interactions and meetings, we
had appointed Dr. Achal Bhagat, Psycho Therapist to make an
assessment with regard to the advisability of the compelled
visitation in such adversarial atmosphere. We have received a
report from Dr. Achal Bhagat in a sealed cover. This report has
made a request that the report be kept confidential.
10
6. Given our above observations, it seems to us that the parties
and the children need counselling. We would therefore, request Dr.
Bhagat to ascertain some background facts regarding the
relationship of the children with their father and grandparents
before they joined the sole custody of the mother. If deemed
necessary and appropriate, Dr. Bhagat may utilise the services of
any other specialist(s). A report be submitted only thereafter.
7. Though at one point, we were inclined to note the report and
to defer recording our observations to the next date. However, on
further consideration, this course did not seem appropriate
keeping in view the concern of this court with the welfare of the
children. We have therefore, recorded what we have observed.
8. In view of the above and in deference to the request of Dr.
Achal Bhagat, we are returning the report in a sealed cover to him
with the request to conduct an assessment afresh after the
interaction with the parties and the children and submit the same
to this court.
9. The respondent shall bear the expenses of the sessions with
the experts.
10. The Registrar (Appellate) shall ensure that the report is
returned in seal cover to Dr. Achal Bhagat.”
th
17. The order passed by the High Court dated 12 May, 2016
came to be challenged by the respondentwife by way of Civil Appeal
arising out of SLP(Civil) No. 16032 of 2016.
18. It reveals from the proceedings of this Court that tireless
efforts were made on various sittings to which one of us (A.M.
Khanwilkar, J.) was a member, to find out an amicable solution in
resolving the inter se dispute regarding the custody of the minor
11
children holding separate and joint session with the parents and
also with the minor children and thereafter the interim order dated
th
29 July, 2016 was passed by this Court is as follows:
“ The petitionerwife in SLP (C) No.16032/2016 is directed to
produce both children in the Supreme Court Mediation Centre at
110, Lawyers' Chambers (R.K. Jain Block), Supreme Court
Compound, Tilak Marg, New Delhi110001 at 10.30 A.M. on
30.07.2016. The Mediator, Supreme Court Mediation Centre shall
see that children are in the exclusive company of their father
Soumitra Kumar Nahar upto 4.30 P.M.
The father will hand over the custody of the children to the
mother at 4.30 P.M.
It is made clear that in case, any of the children, has any
function in the School, the father shall see that the child does not
miss the function.
Post for further order on 05.08.2016.”
19. 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 the
12
children to place both the children in boarding school as it was not
in their best interest to continue with either parent. The order
th
dated 20 March, 2017 passed by this Court is as under:
“Having regard to the strained relationship between the
parties, we are of the view that for the time being it is in the
interest of the children that they be put up in a boarding school,
since, at this stage it is not in their interest to have the exclusive
company of either their father or their mother.
Learned counsel for the parties have fairly agreed on the
following two schools:
1. Welhams Boys/Girls School, Dehradun
2. Wynberg Allen School, Mussoorie
We permit Mr. Soumitra Kumar Nahar to take the necessary
steps for admission of both the children in Welhams Boys/Girls
School, Dehradun and if not possible, in the Wynberg Allen School,
Mussoorie.
We request the Management of the Schools to consider
compassionately these two admissions as a special case and.
We direct Ms. Parul Nahar, mother of the children, to
cooperate with the formalities for the admission of the children in
the school. Mr. Soumitra Kumar Nahar, father of the children, has
graciously volunteered to bear the entire educational expenses.
Report on the steps taken by the parties shall be filed before
this Court within three weeks.
Post on 18.04.2017 at 1.30 P.M., in Chambers, before the
Bench comprising Kurian Joseph and A.M. Khanwilkar, JJ.”
20. This Court had to intervene and appoint four Court
Commissioners to facilitate the admission of the children in
13
Sherwood College, Nainital. Apart from the fact that either party
when has not complied with the orders, suo motu contempt petition
was initiated against the parties and a detailed order was passed as
to how the children have to spend their Dussehra, Diwali and
th
winter vacations with each parent vide order dated 7 September,
nd
2017. After interacting with the parents, this Court, on 22
February, 2018, directed that the arrangements which were made
th
vide order dated 7 September, 2017 to continue and further vide
st
order dated 21 August, 2018, this Court directed the District
Judge, Nainital to meet both the children at their respective colleges
so as to ascertain their wishes to come to Delhi during
Rakshabandhan vacation and with whom they would want to stay
with. Upon receiving the report of the District Judge, order
granting custody during the Rakshabandhan vacation was passed
rd th st
on 23 August, 2018. Orders dated 7 September, 2017 and 21
rd
August, 2018 and 23 August, 2018 are as follows:
th
Order dated 7 September, 2017
“With reference to our order dated 25.08.2017, we are happy
to note that the learned counsel on both the sides, with due
14
instruction from the parties, have submitted the following plan for
all the three vacations i.e. Dussehra, Diwali and Winter Vacation:
“For Dussehra Break – 28.09.2017 (Check out 12.00 noon – 3.00
p.m.) to 03.10.2017 (Check in 10.00 a.m. to 3.00 p.m.)
Mr. Soumitra Kumar Nahar can pick up Ms. Sanjana from
the School on 28.09.2017 and she can remain with him till 2 p.m.
on 30.09.2017. Thereafter, Mr. Nahar shall give the custody of Ms.
Sanjana to Mrs. Parul Nahar at 2 p.m. on 30.09.2017 in New
Delhi. Consequently, Ms. Sanjana shall remain with Mrs. Parul
Nahar for the remainder of her Dussehra break and she would
drop her back to school on 03.10.2017 by 3 p.m.
For Diwali Break – 16.10.2017 (Check out 12.00 noon to 3.00
p.m.) to 23.10.2017 (Check in 10.00 a.m. to 3.00 p.m.)
Mr. Soumitra Kumar Nahar can pick up Ms. Sanjana from
the School on 16.10.2017 and she can remain with him till lunch
on 19.10.2017. Post lunch on 19.10.2017, Mr. Soumitra Kumar
Nahar shall hand over custody of Ms. Sanjana to Mrs. Parul Nahar
in New Delhi and thereafter Ms. Sanjana shall ramain with Mrs.
Parul Nahar for the remainder of her Diwali break. Mrs. Parul
Nahar will drop Ms. Sanjana back to school on 23.10.2017.
Winter Vacation
Mr. Soumitra Kumar Nahar shall pick up Ms. Sanjana from
the All Saints School on 12.12.2017 and Shravan from Sherwood
College on 23.11.2017 the children shall remain with him till half
of the winter vacations respectively. After half of vacation of each
child he will handover the children to Mrs. Parul Nahar in New
Delhi and thereafter children shall remain with Mrs. Parul Nahar
for the remainder of her Winter vacations. Mrs. Parul Nahar shall
drop both the children back to respective schools at Nainital after
completion of vacations.
Dussehra Break for Shravan
Mr. Soumitra Kumar Nahar will pick up Shravan from
Sherwood College on 29.09.2017 and handover Shravan to Mrs.
Parul Nahar on 30.09.2017 @ 2 p.m. Mrs. Parul Nahar will drop
Shravan to Sherwood School @ 5 p.m. on 30.09.2017. Subject to
the approval of Principal of Sherwood College.
15
Diwali Break for Shravan
Mr. Soumitra Kumar Nahar will pick up Shravan from
Sherwood College on 15.10.2017 and handover Shravan to Mrs.
Parul Nahar on 19.10.2017 @ 2 p.m. Mrs. Parul Nahar will drop
Shravan to Sherwood College @ 2.00 p.m. on 22.10.2017.”
We direct the Principal of both the Schools i.e. All Saints
College and Sherwood, Nainital, to inform both the parents, in
advance, the events in which the presence of the parents is
required. We also direct the Principal of both the Schools to act
according to the order, as above, and also facilitate a suitable time
for both the children to meet occasionally. For further directions,
post on 26.10.2017 at 1.45 p.m. before the same Bench.”
st
Order dated 21 August, 2018
“We direct the District Judge, Nainital to go and meet both
the children, namely, Ms. Sanjana at All Saints’ College, Nainital
and Master Shravan at Sherwood College, Nainital and ascertain
whether they would like to come to Delhi during the short vacation
of Rakshabandhan and if they want to come to Delhi with whom do
they want to stay with. The District Judge, Nainital shall ascertain
this information tomorrow itself and pass on the same
confidentially to Secretary General of this Court, who shall
communicate the same confidentially to this Court on 23.08.2018.
List before the same Bench on 23.08.2018 at 1.40 P.M.”
rd
Order dated 23 August, 2018
“We have the relevant inputs from the Report of the District
Judge, Nainital. We permit the father of the children to collect
them from both the schools during the Raksha Bandhan holidays
and drop them back as required by the schools concerned. There
shall be no interference by the mother at the time of picking up of
the children from their respective schools or while dropping them
back. If any of the children wants to visit the mother, they are free
to visit and stay also during the period of Raksha Bandhan
16
holidays. We direct the father to make necessary arrangements in
terms of the wish expressed by any of the children, either to visit
or to stay with the mother. As far as any other issues are
concerned, we make it clear that it will be open to the parties to
pursue their grievance, including the criminal complaint, in
appropriate jurisdiction. We further make it clear that in case the
mother wants to talk to the children on phone, there shall be no
interference on the part of the father. It is further made clear that
this arrangement is only for the purpose of Raksha Bandhan
holidays.”
21. Finally, both the children were shifted to Sherwood College,
nd
Nainital as is revealed from Order dated 22 February, 2019 that
the arrangement regarding custody of the minor children during
school vacations would continue in terms of earlier order until
further orders.
22. Learned counsel for the appellanthusband submits that apart
from the substantive Divorce Petition HMA No. 821 of 2011 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
17
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.
23. Learned counsel further submits that appropriate provision
may be made for safety and security of the children and he may be
permitted to take all other measures which are in the interest for
upbringing of the children.
24. 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 at
18
least 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.
25. Learned counsel further submits that the respondentwife may
be permitted to withdraw her consent to the settlement which had
been reached at one stage between the parties and recorded by the
st
High Court of Delhi in its Order dated 1 March, 2013.
26. 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.
19
27. Learned counsel has further tried to persuade this Court that
the consent order passed by the High Court of Delhi about
st
determination of the guardianship rights by Order dated 1 March,
2013 and all the issues settled by the consented order may be
permitted to be reagitated by the respondentwife including the
issues pertaining to alimony, maintenance, share in ancestral
properties(movable and immovable) and right to pursue all the
available civil and criminal remedies which are available to her
under the law.
28. Learned counsel further submits that contempt notices which
have been issued by this Court has caused a great loss to her. At
least, that may be withdrawn and specific directions may be given
to the subordinate Courts to decide all the pending proceedings
independently without being influenced by the observations made
by this Court in accordance with law.
29. We have heard learned counsel for the parties at length and
also perused the material on record with their assistance of which
detailed reference has been made of various Orders passed by the
20
High Court of Delhi and also by this Court in the pending
proceedings.
30. 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.
31. 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.
32. 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 appellanthusband pending
21
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.
33. 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.
34. 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
22
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 come forward and
the sufferings of the children are shadowed over it.
23
35. 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 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.
36. After we have heard the parties and after going through the
record in its entirety, we are of the view that the interim
arrangement which has been made by this Court vide its Order
th
dated 7 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.
24
37. The submission of the learned counsel for the respondentwife
seeking permission to withdraw from the consent which was
st
recorded by the High Court of Delhi in its Order dated 1 March,
2013, we would like to observe that it was a trilateral consent which
st
was recorded by the High Court in its Order dated 1 March, 2013
which one party cannot be permitted unilaterally to seek
withdrawal of his/her consent and in our considered view, the
st
consented order dated 1 March, 2013 will remain operative until
the parties to the consent order jointly move an application for
st
withdrawal of their consent as being recorded in its Order dated 1
March, 2013 or until the Court of competent jurisdiction is pleased
to set it aside on permissible grounds and/or absolves the
respondentwife therefrom.
38. 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
25
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. It may not
be advisable for this Court to record any finding in this regard
which indeed may not be in the interest of the litigating parties.
Hence, we leave it open. 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.
39. To finally conclude, we would like to observe that the interim
arrangement made by this Court regarding the custody/visitation
th
rights of the parties vide order dated 7 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 children as a paramount consideration being the
sufferers of the matrimonial discord, if such an application is filed
26
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
st
case later than 31 December, 2020.
40. The appeals are disposed of on the terms indicated above.
41. All pending application(s) stand disposed of.
….…………………………J.
(A.M. KHANWILKAR)
..………………………….J.
(AJAY RASTOGI)
NEW DELHI
February 18, 2020
27