Children ‘s Custody Arrangement can be Modified if Required

By- Pragati Goyal




BACKGROUND

The history of the case is as; on 7th February, 2006 a French lady married an Indian citizen, under the Special Marriage Act, 1954. After marriage the lady and her husband jointly purchased property at the Asian Games Village Complex, New Delhi and started residing there together.  On 18th December 2009, a daughter was born to the married couple and on 25th June 2011 a son was born to them.  According to the lady, her husband was in an adulterous relationship with a lady, with whom he was having an extra-marital affair openly. The lady put allegation on her husband had subjected her and the minor children to domestic violence.  The lady claims that by reason of violence inflicted by her husband on her and the minor children, the lady had been constrained to leave the matrimonial home and take temporary residence in a hotel with the minor children. The husband filed a writ of Habeas Corpus under Article 226 of the Constitution of India, whereby a Division Bench of Delhi High Court permitted the Husband, access to his minor children aged 10 and 8 respectively from 11.00 a.m. to 4.00 p.m. every Saturday and Sunday. The appellant filed a writ petition in Supreme Court against the Order of High Court.

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CURRENT ISSUE

Supreme Court bench comprising of Justice Indira Banerjee and Justice A.S. Bopanna observed that the children were willing to meet their father as reported by the counsel appointed for counseling of both the them. Court also held that little children need to be brought up with the love and care of both parents. Even if the parents have been constrained to part, the children cannot be denied of their right of access to both the parents. Supreme Court said “It is reiterated at the cost of repetition that in matters related to custody and access, the interest of the children is of paramount importance and access to both parents is in the interest of the children”. Supreme Court further stated that father should not insist on strict compliance of the Order of the High Court stating that “It hardly needs mention that the arrangement as stipulated in the order impugned may sometimes have to be modified or adjusted and exceptions made, if exigencies so require. For example, if the children or one of them is unwell, or if the children have a programme at school”.

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QUESTION OF LAW

As the Supreme Court has disposed of the case by giving its judgment that the children were willing to meet with their father even though both of them are constrained to dessert the rights of the children could not be infringe as they need love and care of both the parents. As per reported by her wife that she and her minor children were assaulted by her husband who was living in adulterous relation with other lady, the court allowed them to discrete with each other but their father can meet them as per directed by the high court. Here there is no question which could be raised that there is something unfair with any person involved in this case. The judgement is in the favor of children as they willfully wanted to be with their father.

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CONCLUSION

The Indian constitution provides certain rights and on the grounds of such rights the provision for adultery as a crime is repealed. In this case the husband and wife are being discrete as the husband was in extra marital relation with another lady. The issue was raised when it comes to the custody of their children. So the court held that as a mother she has the right for the custody of her children but they need love from both the parents and as the children are also willing to be with their father, the court give him permission to meet them and could attend the school functions and meet them if any of them is unwell. Here at last we can conclude that the court has given the fair judgement as it is for the better future of the children.

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