This article is written by Gitika Jain pursuing BBA.LLB (Hons) from Amity University, Kolkata. This is an exhaustive article which deals with the fact that the breakdown of marriage and the parental responsibility of the couple does not come to an end.
With the breakdown of a marriage, the parental responsibility of the couple does not come to an end. It is always the case that because of the ego clashes of the couple, the child is always the one who suffers. Therefore, it has become a need to fix the responsibility of the parents which they owe towards their child. While doing this a very landmark and exchange judgement of the Supreme Court on February 18, 2020, in the case of Soumitra Kumar Nahar v. Parul Nahar was made. It was observed by the Supreme Court that the breakdown of marriages is leading to the breakdown of responsibility on the part of the parents towards their child. This explains why the apex court finds the need to fix the responsibility on the parts of the parents towards their child.
The bench deciding this case comprised Justice AM Khanwilkar and Justice Ajay Rastogi. Justice Ajay Rastogi and Justice AM Khanwilkar, in this case, observed that it does not matter in the custody battle which side of the parent wins because the child always remains the loser. The child always has to pay a heavy amount when the decision to stay with any one side of the parent is burdened on them. This dispute has always been a rise in the past initially from the family court of Delhi but has now reached this court.
The husband, in this case, Soumitra Kumar Nahar did not accept the order of Delhi High Court dated 4th September 2015 which was partly allowing the appeal in order to comply with the wife Parul Nahar which was visitation rights of the husband to meet son Master Shravan. But at the same time the visitation rights to meet his daughter Sanjana was declined and it was observed that only if the daughter wants to meet her father she can do so on her own desire.
Further, it was mentioned that a miscellaneous application was filed by the respondent Parul Nahar before Delhi High Court, the order for which was passed on 12th May 2016 to direct Dr Anchal Bhagat psychotherapist to check 2 background facts of the relationship between the children and their father Soumitra Kumar Nahar and paternal grandparents. During the hearing of the cases, both grandparents died. Thus briefly it was also stated that since the facts are common in both the appeals both the relevant factors will be taken into consideration from the civil appeal.
It was also observed that both the appellant and respondent Sumitra Kumar Nahar and Parul Nahar respectively were married according to Hindu rites and customs on 10th December 2001 and were blessed with baby girl Sanjana on 24th May 2005 and a baby boy Shravan on 10th October 2008.
Soon after the birth of the second child in October 2008, some small matters of differences started cropping up in their marital relationship and out of which unfortunately both the party started making personal and counter-allegations against each other which force them to file Guardian petition on 15th April 2011 under Section 7,8, 10 and 11 of Guardian and Wards Act 1890. A dictionary of separate divorce petitions was also filed in September 2011 on the grounds of cruelty and adultery. The matter became even worse than what it was when a suit was filed by the father Sumitra Kumar Nahar before Delhi High Court pleading for a mandatory injunction against the respondent his wife from entering into his property.
Soon after hearing the lawyers from both the sides and taking into consideration all the materials on record, the bench stated that the rights of the child need to be respected because both of them are entitled to receive the love from their parents they deserve. Even when there has been a breakdown of marriage happening it does not take away the responsibility from the parents towards their child and the child can not suffer as it does in most of the matrimonial disputes.
Regardless of the fact that it could be Harsh the bent straight away late noun that the judgement of the court while deciding such matters related to the custody of the child the necessary and primary importance must always be the welfare of the child and nothing else and if the welfare so demands then no technical objections can come in the way. While deciding their welfare only the interest of one spouse alone cannot be taken into consideration but the court should decide the matter of the issue of custody emphasis on both the side of the parties and the best interest of the child who is always the victim in the custody of the battle.The custody of the child decision should not be influenced by the divorce petition under Hindu Marriage Act. the decision of the same must be taken independently and not depending on the decision of the divorce petition.
It was then made clear by the bench that as far as the custody of the minor children is concerned according to law the High Court first tried to resolve the dispute between the parents keeping in mind the best interest of the children because they are entitled to receive the love and affection from both the parents and not one. But even after that, the parents decide to separate. It is always the child who has to pay a heavy price.
In such cases where the parents feel so determined and resolve a dispute among themselves related to the custody of the minor child the court comes into play and reaches to a conclusion that best suits the interest of the child.
Every attempt to resolve the matrimonial dispute in the first place itself must be made to act for the best interest of the child, for example, the process of mediation using a mode of alternative mechanism can be used to resolve the dispute between two conflicting parties in a matrimonial dispute as expeditiously as possible. Delay in the same can lead to huge loss on the right of the child and this can lead to depreciation of their rights under the protection of constitution with every day passing by and he or she pays heavy prices of being deprived of the love and affection of their parents for which they are not even responsible.
Therefore in this particular case, Delhi High Court expeditious effort to hold a separate and joint session for both the parents in order to resolve the dispute between them but no fruitful result came out of the same.
The dispute can always be resolved sitting across the tables but in this case, the ego of the parents did not allow them to do so and overshadowed the suffering of the children.
The court also observed that it is in the good interest of the children that in such cases the grandchildren remain in the company of their grandparents. But in this case, the grandparents were not only deprived of the love and affection from the children but also the children were made to suffer because the grandparents lost their lives in which we in the pendency of the case and which is a very strong message to the litigating parties to take reasonable amicable situations and secure peace for the better future.
Finally, it was observed in para 39 of the case that the interim arrangement made by the court regarding the rights of the parties on 7 September 2017 will further continue until additional orders with respect to Liberty of the parties are made and the court also took the interest of the children who were the sufferers of this matrimonial discord and decided that it the decision would be independent of the fact that a diverse petition has been filed between the same parties and the diverse petition shall be decided as expeditiously as possible and not later than 31st December 2020.
Therefore in simple and state language which can be said that the very essence of this judgement is the interest of the child while considering such matters shall be given paramount importance and The breakdown of marriage does not bring an end to the responsibility of the parents they go towards their child and the parents cannot wash their hands by terminating their marriage and expect an end of everything. Therefore from this case onwards every court must follow the same approach in such similar cases. Before winding of the case it was felt necessary to lay down in simple terms that the very essence of the landmark judgement was in favour of the interest of the child which was to be taken care of with most responsibility on the parents. In other words, it laid down that the parents cannot just wash their hands off from the responsibility of their child on the grounds of their raw breakdown of marriage and cannot treat it as an end of everything. Therefore all the courts must follow this approach as laid down by the apex court in similar cases. A child cannot always be a loser in every case of breakdown of marriages.
Therefore children cannot always be on the losing end of their family disputes and it does not matter which side of the parents win but the child is always considered to be the loser in such cases.
Key features of the case
- All the pending applications were disposed of by the bench.
- it was at the liberty of the parties to take a step in filing a petition of guardianship for the minor children before a competent court of jurisdiction.
- A note must be taken off the interest of minor children and to be considered of paramount importance because they were always sufferers in such matrimonial discords.
- Grandparents were different from the love and affection of the grandchildren and because they died during the pendency of the case.
- Under the Hindu Marriage Act any divorce petition shall be decided by the court as expeditiously as possible and in this case not before 31st December 2020.
At the end in the light of above findings and observations by the court, it was directed to the appellant to bear all the cost of the proceedings and to pay to the respondent within a span of two months rupees 50000. The parties were also directed to be present before the given family court on 8th August. Once the party states the number of witnesses shall be binding on them and if there is any modified list of witnesses the child has to be presented to the family court on the next day of the hearing. Soon after that the respondent witnesses cross-examination will be taken up and the family court should try to render its final judgement as expeditiously as possible and they should not ask for further adjournments on the grounds of councils inconvenience. The exception of the same was also provided and the appeals were allowed in these terms and conditions. With the breakdown of the marriage, the parental responsibility of the couple does not come to an end. It is always the case that because of the ego clashes of the couple with the child is always the one who suffers. Therefore it has become a need to fix the responsibility of the parents which they owe towards their child.
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