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by sekar · Published September 16, 2018
In a judgmentSupreme Court observed that a second marriage cannot be held against a divorcee to deprive him of the custody of his children born of the failed wedlock, more so when the divorce was obtained by mutual consent. As stated in the judgment, “The second marriage of the appellant [divorcee] cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments.“ The observation was made by Justices Kurian Joseph and Sanjay Kishan Kaul while allowing an appeal filed by a divorcee man against a Bombay High Court verdict which had handed custody over his children to his former wife/respondent. This, he pointed out, was done contrary to the terms of a divorce decree passed in December 2016. The terms of this divorce decree had granted the appellant full custody over his two children, whereas both the appellant and respondent undertook to provide equal financial support for the children. As a natural corollary to the divorce, both parties were also allowed to enter into another marriage if they wished to. The appellant eventually entered into a second marriage. Following the terms of the mutual divorce, the appellant and his second wife took care of the children, while the respondent was allowed visitation rights. ￼ Read Story: When can a divorcee lawfully marry again under the Hindu Marriage Act? SC clarifies However, fresh problems arose in 2017 when the appellant was transferred as part of his job to Jammu. On account of this transfer, the appellant decided to admit the children to a boarding school while he considered the prospect of finding a suitable school in Jammu. In view of the same, in March 2017 the appellant requested the respondent to provide financial support for boarding school fees, considering the commitment undertaken by her at the time of the divorce. Instead, the respondent filed a case in the family court seeking custody of her children. A suit was also filed to quash the 2016 divorce decree on allegations that the respondent was coerced into agreeing to its terms. When the family court declined to grant relief, she appealed to the Bombay High Court, which passed an order in her favour last June. A Special Leave Petition filed against this order by the husband citing violation of the 2016 divorce decree led to the matter being remitted to the Bombay High Court. However, the High Court again ruled in favour of the respondent, granting custody of the children to the respondent. The High Court based its judgment on a personal interaction it conducted with the children, during which the children informed that they wished to stay with the respondent, although they loved both parents equally. On further appeal, however, the Supreme Court noted that the High Court had erred in failing to consider the conscious decision taken by the parties to give sole custody of the children to the appellant. The divorce decree, passed with the mutual consent of both parties, had chalked out terms which had been agreed upon during a six month cooling period. In such circumstances, the Court opined that it could hardly be presumed that a well-educated person such as the respondent could have been coerced to agreeing to its terms. “In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud.“ The Bench also pointed out that the Bombay High Court failed to appreciate the context in which the children had expressed their wish to stay with the mother. “We are of the view that the learned Single Judge has given undue importance to the conversation with the children at a time when naturally they would prefer to stay with a parent rather than a boarding school.“ On an overall evaluation of the facts, the Court eventually found that the respondent had only challenged the appellant’s custody over their children because he had prompted her to support the children financially, a commitment she had failed to honour till date, as per the appellant’s submissions. “The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter… It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts.“ All things considered, the Court ruled in favour of the appellant, also noting that his second marriage cannot be held against him to deprive him of rightful custody over his children. “As per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for the daughter, contrary to the agreement inter se the parties…” Read the Judgment below.
by sekar · Published October 28, 2018
by sekar · Published May 2, 2019