J. Venkatesan

“Moral or religious welfare of children must be considered as well as physical well-being”

“Mere care and attachment will not entitle father to custody of child”

New Delhi: Holding that the welfare of the child must be the paramount consideration in granting custody to either of the divorced parents, the Supreme Court on Wednesday rejected a father’s claim that he was the natural guardian and entrusted an 11-year-old boy to his mother.

Settling a decade long dispute, a Bench, consisting of Justices Arijit Pasayat and G.S. Singhvi, however, said the welfare of the child was not to be measured only by money or physical comfort. “The word ‘welfare’ must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.”

Writing the judgment, Justice Pasayat said: “Merely because there is no defect in his [father’s] personal care and attachment to his children — which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable, [it] does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him.”

Disturbing phenomenon

Expressing concern over the increasing divorce rate among young couples, the Bench said: “It is a disturbing phenomenon that a large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 have led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the Section invalid. Actions may be bad, but not the Section.”

The Bench said: “People rushing to courts for breaking up of marriage should come [there] as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. This is more important in cases where the children bear the brunt of dissolution of marriage.

Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be physical and mental union.”

The Bench said: “It is not uncommon to see that at the time of negotiation of marriage, parents shy away because the girl is from a broken family and/or the parents are divorced. The child has practically no role in the breaking of the marriage, but he or she suffers.

In the instant case, Gaurav Nagpal and Sumedha Napgal got married in 1996 and after a boy was born to them, they got separated and the child was with the father. Both the trial court and the Delhi High Court granted its custody to the mother.

Appeal dismissed

The Supreme Court dismissed Mr. Gaurav Nagpal’s appeal against the High Court judgment with Rs. 25,000 as costs to Sumedha and directed that the custody of the boy be given to the mother, who herself argued the case.

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