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SUPREME COURT OF INDIA
Sanjay Kishan Kaul, Indira Banerjee, JJ.
Sunildas - Appellant
Versus
Ramya Sunildas & Ors. - Respondents
Civil Appeal No. 1591 of 2019, 1592 of 2019, 1593 of 2019
Decided On : 11-02-2019
Custody - Family Law - The court directed the High Court to determine the issue of maintenance and allowed the appellant to initiate custody proceedings before the family court, emphasizing that the custody of the child shall remain with the respondent-mother with visiting rights for the father.
Fact of the Case:
The issue of custody of the child arose in proceedings dealing with maintenance before the High Court. The appellant-father's conduct led to a change in custody from the father to the respondent-mother without addressing visiting rights.
Finding of the Court:
The High Court was directed to determine the appeals regarding maintenance, and the appellant was allowed to initiate custody proceedings before the family court. The custody of the child was to remain with the respondent-mother with visiting rights for the father.
Issues: Custody determination by the High Court without specific proceedings filed before the family court, and the principal grievance raised by the appellant regarding the examination of the custody issue.
Ratio Decidendi: The High Court was directed to focus on the issue of maintenance, and the appellant was given the opportunity to pursue custody proceedings before the family court independently of the High Court's orders.
Final Decision: The appeals were disposed of with directions for the High Court to determine maintenance issues and for the appellant to initiate custody proceedings before the family court, while maintaining the custody of the child with the respondent-mother and granting visiting rights to the father.
ORDER
1. Leave granted.
2. Heard learned counsel for parties.
3. In the proceedings before the High Court dealing with the issue of maintenance, it appears that the issue of the custody of the only child of the parties came to be examined. In terms of the agreed order dated 1.3.2018, the respondent-mother was given visiting rights while the custody remaining with the father.
4. Thereafter the conduct of the appellant-father, which left much to be desired, has resulted in orders including the impugned orders that now the custody is with the respondent-mother with no direction having been passed about the visiting rights of the appellant- father.
5. The principal grievance raised before us by learned counsel for the appellant is that there was really no occasion for the custody issue to be examined by the High court as no proceedings had been filed before the family Court and the only issue to be examined was of the maintenance for which the appeal had been filed by both the parties.
6. On the conspectus of the matter we consider it appropriate to issue the following directions:
(i) The High Court will determine the appeals qua the issue of maintenance.
(ii) The appellant is free to initiate appropriate proceedings qua the custody of the child before the family court which will be determined on its own merits uninfluenced by any orders which may have been passed by the High Court.
(iii) In the interregnum period the custody of the child shall remain with the respondent-mother with visiting rights for the father on a pari materia basis as per the agreed order dated 1.3.2018 now instead of the respondent-mother, the appellant-father would have the visiting rights on the same terms.
The appeals are disposed of accordingly.
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