A TWO-JUDGE bench of the Supreme Court consisting of Justice Ashok Bhushan and Justice Navin Sinha, has observed in the judgement of the case – Sheoli Hati v. Somnath Das, delivered on July 11, 2019, that the ill effect on child, due to discord between the parents with negative feeling against each other has natural effect, which hinders the child’s natural development. In this case also there was bitter fight between father and mother. The Family Court had allowed the custody of the minor girl child to the father by dismissing the petition of the respondent-mother for custody.

 

 

The Jharkhand High Court on appeal decided the entitlement of custody of the child to the mother. Aggrieved by the order of the HC, the father had filed the appeal and in that background observations were made by the apex court. It is well settled that while taking a decision regarding custody or other issues pertaining to a child, welfare of the child is of paramount consideration. In its judgement of the case – Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, ‘the court had occasion to consider the parameters while determining the issues of child custody and visitation rights, entire law on the subject was reviewed . The court has made reference to English Law, American Law, the statutory provisions of Guardian and Wards Act, 1890 and provisions of Hindu Minority and Guardianship Act, 1956 and laid down Law in the paragraphs 43, 44, 45, 46 and 51 of the judgement.

 

 

The Supreme Court has been of the view that what is in the interest of the child depends on the facts and circumstances of each case and has to be decided on its own merits without adhering to any fixed formula or rule.

Keeping in mind the pendency of the appeals before the HC, the Supreme Court has stated that in its view that while deciding the appeals finally, HC should also take into consideration subsequent materials which may be brought before it by the parties including the progress report of the child from her school in Ooty. The appellant in this case, was aggrieved by the judgement delivered by a Jharkhand HC division bench at Ranchi, on April 26, 2018 and hence, he filed these appeals. The judgement was passed in the two first appeals- one filed by the appellant-wife and the other one by the aggrieved father. Both have challenged the order passed by the Principal Judge, Family Court at Jamshedpur on March 31, 2016 in a guardianship case under Sections 7 and 12 of the Guardian and Wards Act, 1890. The appellant and respondent were married in the year 2003.

 

 

There had been matrimonial disputes between the two, since the year 2006. A girl child Aditi was born to them on April 9, 2007. The wife had filed complaint against the husband before various authorities, employer of the respondent as well as National Human Rights Commission. On September 11, 2009, the Family Court at Bengaluru granted ex-parte decree of divorce. They had settled all their disputes before the Jharkhand Legal Services Authority. A settlement between the two bearing date December 19, 2009, was communicated to the HC. As per the terms of the settlement, the husband agreed to pay Rs. five lakh as permanent alimony to the appellant-wife.

 

 

Further, the husband agreed to deposit Rs. 5 lakh in the name of Aditi for her all-time maintenance. The wife agreed not to challenge the ex-parte divorce decree. The appellant also agreed to allow the husband to meet the child once in every two months, starting from January, 2010. The High Court disposed of the matter in terms of the settlement.

In response to the application filed by the husband for custody of the child, alleging obstruction by the wife in his visiting rights, at Bengaluru and transferred to Family Court, Jamshedpur, by the Supreme Court on March 27, 2012, in the Guardianship case. The Family Court directed that Aditi shall continue in the custody and guardianship of her mother till she attains the age of 11 years and continue to pursue her education in Jamshedpur. The respondent-husband was allowed visitation rights and also allowed custody of the child for first half of each vacation of the school. The Family Court further directed that for the academic session 2019-2020, she shall be sent to a boarding school of repute where she qualifies and is able to get admission.

 

 

Aggrieved by the judgement of the Family Court, both the parties filed appeals in the High Court. The HC interacted with the child on several occasions. On February 21, 2019, the report from Child Welfare Committee, Ranchi, Jharkhand and on January 29 and February 2, 2019, reports from Good Shepherd International School, Tamil Nadu were received. By order dated May 3, 2019, on the request of the mother she was permitted to have the custody of the child during the entire vacation with effect from May 22 , 2019. According to the apex court the impugned order indicates that the HC has not finally decided both the appeals filed against the order passed by the Family Court on March 31, 2016. The matter was kept pending by the HC. The HC had directed that after the child is admitted in the school, the matter should be posted again before the HC to file compliance report.

 

 

The Supreme Court has directed that all the reports received from the school including the last one of July 8, 2019, be sent to the HC in sealed cover by a special Messenger, for its consideration in the pending first appeals. While disposing of the appeals, the apex court has stated that it does not see any reason /good ground to interfere with the impugned judgement of the HC. The SC has “requested” the HC to decide the two first appeals after hearing the parties keeping in view the observation made in this judgement.