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2023 Supreme(SC) 1209
SUPREME COURT OF INDIA
VIKRAM NATH, RAJESH BINDAL, JJ.
Selvaraj – Appellant
Versus
Revathi – Respondent
Criminal Appeal No. 3736 of 2023, S.L.P. (Crl.) No. 9914 of 2018
Decided On : 06-12-2023
For the Petitioner(s): Mr. M.P. Parthiban, AOR Ms. Priyaranjani Nagamuthu, Adv. Mr. R. Sudhakaran, Adv. Mr. T. Hari Hara Sudhan, Adv. Ms. Shalini Mishra, Adv. Mr. Bilal Mansoor, Adv. Mr. Shreyas Kaushal, Adv.
For the Respondent(s): Mr. M. Yogesh Kanna, Adv. Mr. S. Prabu Ramasubramanian, Adv. Mr. Raghunatha Sethupathy B, Adv. Mr. Bharathimohan M, Adv. Ms. Priya R, Adv. Mr. S. Sabari Bala Pandian, Adv. Mr. Santhosh K., Adv. Mr. M. Vishal Sundaramughan, Adv. Mr. Manoj Kumar A., Adv. Ms. Preethi G., Adv. Mr. Vasu Kalra, Adv. Mr. K. Paari Vendhan, AOR
IMPORTANT POINT
In any matrimonial dispute, it is always child/children who bear brunt – For proper growth of a child, love and affection of both parents is necessary.
Headnote:
Protection of Women from Domestic Violence Act, 2005 – Section 12 – Maintenance and interim custody of child – Child flatly refused not only to go with his mother but even talk to her – From very beginning he is living with father-appellant – In any matrimonial dispute, it is always child/children who bear brunt – For proper growth of a child, love and affection of both parents is necessary – In any matter of custody of child, his welfare is paramount consideration – Though initially child said that he can meet mother twice a year, however later on he consented for a monthly meeting at a public place to be scheduled on a Sunday – He was averse to visit Court – He agreed that his mother-respondent can make phone calls to him – It is always good for upbringing of child that he has love and affection of both parents – Effort can be made by Mediation Centre attached with High Court for interaction of child with a Counsellor – However, as child is averse to visit court, it may be planned at a place other than Court Complex – Child at present is 12 years and 9 months old – He is in a position to take decisions – It would not be in interest for upbringing of child that his custody is given to respondent-mother at this stage – However, as agreed, mother can call him and will have visitation rights. (Paras 7, 8.1, 9 and 11)
Facts of the case:
Present appeal arises out of a dispute pertaining to custody of child born out of wedlock of parties to appeal. Despite there being no stay, order directing appellant to hand over custody of child to the respondent had not been complied with.
Findings of Court:
Once the parties have agreed for conversation on phone, day, time and venue of meeting can also be mutually agreed. Time of meeting can also be as per convenience of parties and study of child.
Result : Appeal disposed of with modification in impugned order.
- Marriage solemnized on 16.05.2010; child born on 18.02.2011. [1000787160002]
- Matrimonial dispute led to divorce petition by appellant in 2014 and respondent's complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking maintenance and interim custody of child. [1000787160002]
- Magistrate directed appellant to hand over child's custody to respondent on 22.05.2014 (child aged 3 years 3 months); order not complied with despite no stay. [1000787160002][1000787160003]
- Subsequent applications and appeals by appellant dismissed up to High Court. [1000787160002]
- Mediation attempted in 2019; respondent unwilling, child (then 9 years 9 months) unwilling to go with mother. [1000787160004]
- Court interacted with child on 19.10.2023; child refused to go with or talk to mother; has lived with father since beginning. [1000787160005][1000787160006]
- Child's welfare is paramount consideration in custody matters; love and affection of both parents necessary for proper growth. [1000787160006]
- Senior counsel interacted with child and parties; child initially averse to mother but agreed to monthly Sunday meetings at public place (not court), phone calls; reluctant to visit court. (!) [1000787160007]
- Child now 12 years 9 months old, capable of taking decisions. [1000787160010]
- Not in child's interest to give custody to mother at this stage; custody remains with father. [1000787160010]
- Mother granted phone calls and visitation rights (monthly meetings at mutually agreed public venue/time per child's convenience/studies). [1000787160009][1000787160010]
- Mediation Centre to facilitate child-counsellor interaction outside court complex. [1000787160010]
- Appeal disposed of modifying impugned order. [1000787160011]
JUDGMENT :
RAJESH BINDAL, J.
1. Leave granted.
2. Order1 [Order dated 04.10.2018 in Crl. R.C. (ML) No. 88 of 2017] passed by the High Court2 [Madurai Bench of Madras High Court] is under challenge before this Court.
3. The present appeal arises out of a dispute pertaining to custody of the child born out of the wedlock of the parties to the appeal. The marriage between the parties was solemnised on 16.05.2010. Out of the wedlock, the child, namely, Manish whose custody is the subject-matter of dispute, was born on 18.02.2011. Thereafter, the matrimonial dispute arose between the parties. Divorce Petition3 [H.M.O.P. No. 12 of 2014] was filed by the appellant in the year 2014. The respondent filed Complaint4 [M.C. No. 4 of 2014] under Section 12 of the Act5 [Protection of Women from Domestic Violence Act, 2005] claiming maintenance. Further prayer was made for grant of interim custody of the child to the respondent. Vide order dated 22.05.2014, the Magistrate6 [Judicial Magistrate, Pudukottai] allowed the application and directed the appellant to hand over custody of the child to the respondent. The appellant filed application7 [Crl. M.P. No. 4929 of 2014] seeking revocation of the earlier order dated 22.05.2014 passed by the Magistrate directing handing over custody of the child to the respondent. The aforesaid application was dismissed by the Magistrate vide order dated 20.11.2014. The said order was challenged by the appellant by filing appeal before the Principal District Judge, Pudukottai. The same was dismissed vide order dated 31.01.2017. The High Court in revision filed by the appellant upheld the aforesaid order. The same is under challenge before this Court in the present appeal.
4. Despite there being no stay, the order directing the appellant to hand over custody of the child to the respondent had not been complied with. The proceedings of custody were initiated in May 2014 and vide order dated 22.05.2014, the appellant was directed to hand over custody of the child to the respondent when he was three years and three months old. However, till date custody of the child continues with the appellant.
5. A perusal of the paper book shows that to explore the possibility of settlement of dispute between the parties, vide order dated 02.12.2019, the matter was referred to the Mediation Centre8 [Tamil Nadu Mediation and Conciliation Centre, Madurai] in the High Court. Report dated 19.11.2020 was received from the Mediator stating that the respondent was not ready to mediate and the child, who had completed nine years and nine months as on that date, was not willing to go with the mother.
6. On 19.10.2023, after hearing learned counsel for the parties, this Court deemed it appropriate to interact with the child. The appellant was directed to bring the child to the court and the respondent was also directed to appear.
7. We had interacted with the child in Court. He flatly refused not only to go with his mother but even talk to her. We do not wish to go into the reasons behind that but the fact remains that from the very beginning he is living with the father-appellant. In any matrimonial dispute, it is always the child/children who bear the brunt. For proper growth of a child, love and affection of both the parents is necessary. In any matter of custody of child, his welfare is paramount consideration. Keeping that in view and seeing the attitude of the child, we thought it appropriate to request Ms. V. Mohana, learned senior counsel to interact with the child. The matter was to be listed on 22.11.2023.
8. When the case was taken up for hearing on 22.11.2023, Ms. V. Mohana, learned senior counsel, who was requested by this court to submit her report after having interacted with the child at different times and also the parents. She had even counselled all of them.
8.1 A perusal of the report submitted by Ms. V. Mohana, learned senior counsel shows that during interaction with the parties to the dispute, she had made numerous efforts to
