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It is nerve-wrecking for me to even think about the agony couples suffer while their marriage falls apart. But it pains us so much more to imagine the suffering their child experiences in the process. Yes, you read it right, we are talking about the painful process of getting divorced from your spouse and the struggle thereafter of getting the custody of your child(ren). The whole journey of separation is ugly but settling the matter of child custody is even uglier. While amicable resolution is a possibility, in reality it is farfetched considering the relations between two adults have already turned bitter due to irreconcilable differences and sometimes inflated egos.

This makes us ponder over the first thought that would possibly come in the minds of divorced parents – who gets the child’s custody after separation? There could be reasons for which each parent would want to win the custody of the child after divorce. Division of parental property, financial support for child’s education, good upbringing, safety and maintenance, visit rights, alimony, comfort with the child, right to take decisions with regard to child’s life, etc. are some that we could imagine. They would hire the best child custody lawyer to win the custody and block it for the other parent. However, as per the Indian child custody law, both parents have equal rights over the child even after their legal separation. The custody of the child who is less than 18 years in age only implies, with which parent the child will physically stay. One parent winning the custody does not mean that the other parent seizes to be the parent of the child and loses all rights over the child. The child custody law clearly states that irrespective of their marriage being annulled, they continue to be the natural guardians of the child. In other words, the custodial parent becomes the primary caretaker and the non-custodial parent retains the right to meet the child.

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) केस जहाँ Guardian & Wards Act 1890  की धारा 17(3) को समक्ष रखते हुए माननीय सर्वोच्च न्यायालय ने ये माना की चाइल्ड कस्टडी की मामले में नाबालिग की इच्छा भी सामान रूप से महत्वपूर्ण है तथा उसकी वरीयताओं पर भी विचार किया जाना चाहिए खास कर जब वो एक ऐसे उम्र में हो जहां उसमे अपनी पसंद और नापसंद की बारे में पर्याप्त जानकारी हो तथा वो भी अपनी वरीयता की अनुसार चुनाव करने योग्य हो.

सुप्रीम कोर्ट की तीन जज की बेंच जिसमे न्यायमूर्ति यु यु ललित, न्यायमूर्ति इंदु मल्होत्रा तथा न्यायमूर्ति हेमंत गुप्ता थे उन्होंने एक अत्यंत महत्वपूर्ण फैसले में एक नाबालिग बालक की कस्टडी उसके पिता को प्रदान की जो की नैरोबी, केन्या  में रहते है।

यह क़ानूनी लड़ाई लगभग दस साल चली जिसमे आदित्य (वह नाबालिग बालक जिसकी कस्टडी की लिए ये केस था) की कस्टडी की लिए उसके माता पिता ने परिवार कोर्ट से ले कर सुप्रीम कोर्ट तक ये कठिन कनूनी राह तय की तथा अंततः सुप्रीम कोर्ट ने आदित्य की सम्पूर्ण कस्टडी उसके पिता को प्रदत्त की।

यह जानना भी बेहद रोचक है की इस लम्बी और कठिन क़ानूनी लड़ाई की दौरान माननीय न्यायमूर्ति आदित्य से व्यक्तिगत रूप से अपने चैम्बर में कई बार मिले और यह जानने की कोशिश करी की आदित्य की व्यक्तिगत राय क्या है तथा उसकी वरीयता में उसके माता या पिता में उसकी अधिक नज़दीकी किसके साथ है। इस प्रकार की अनौपचारिक बातचीत से माननीय न्यायमूर्ति संतुष्ट हुए की बालक की समझ और वरीयता में वो अपने पिता से ज्यादा करीब था तथा उसकी इच्छा अपने पिता के साथ रहने की थी।

माननीय सुप्रीम कोर्ट ने अपने फैसले में स्पष्ट तौर Guardian & Wards Act 1890 अधिनियम की धारा १७(३)  का उल्लेख किया तथा स्पष्ट किया की इस केस में बालक की भविष्य का फैसला इस प्रकार से होना चाहिए जो उसके भले के लिए सर्वोपरि हो तथा उसके सभी हितों की सम्पूर्ण रक्षा भी हो।

माननीय सुप्रीम को ने परिवार कोर्ट, हाई कोर्ट के फैसले तथा कौंसिलर की रिपोर्ट को भी बहुत गौर से परखा और पाया की बालक आदित्य ने अपने पिता की अधिक झुकाव दिखाया था। अपने फैसले को अंतिम रूप देते हुए माननीय सर्वोच्च न्यायालय ने बालक की हितों को सर्वोपरि मानते हुए उसकी संगरक्षण की ज़िम्मेदारी उसके पिता को सौंप दी। सुप्रीम कोर्ट का पूरा फैसला यहाँ से पढ़े।:

Case: Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020)

Section 17(3) of the Guardian & Wards Act 1890

17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court shall not appoint or declare any person to be a guardian against his will".

Section 17(3) was the guiding light to the Hon’ble Supreme Court in the matter of Smriti Madan Kansagra v Perry Kansagra (Civil Appeal No. 3559/2020) wherein Hon’ble Court observed that while deciding the child custody matter the Court should also consider the preferences of the minor child if he or she is aged enough to form a well thought & intelligent choice.

The bench of Hon’ble Justices UU Lalit, Indu Malhotra and Hemant Gupta decided the matter. In this matter the child custody was awarded to the father who was based out in Kenya.

It was long legal batter between the parents from family court, to the high court to Hon’ble Supreme Court and with more than 10 years of legal struggle finally the father was able to get the custody of his boy Aditya.

It was interesting to note that Hon’ble judged met the child personally many times during the case proceedings to ascertain his inclination and preference. They also tried to understand child’s choice towards his family members.  

Hon’ble court quoted section 17(3) in the judgement and also observed the same principle in the instant case that the sole consideration should be to protect the interest and welfare of the child.

While considering the findings of the Family Court, the High Court and the Report of the Counsellor, Hon’ble Supreme Court found that the child showed more inclination towards his father and concluded that it would be in the best interest of the child to transfer custody to his father because if the preferences of the child were not given due regard, it could have an adverse psychological impact on the child.

Read the complete judgement from here:

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

• The Code of Criminal Procedure (CrPC), 1973
• The Protection of Women from Domestic Violence Act (DVA), 2005
• Hindu Marriage Act (HMA), 1955
• Special Marriage Act (SMA), 1954
• Hindu Adoption and Maintenance Act (HAMA), 1956

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the third issue amongst the five (5) problems mentioned in the judgment that is issue of criteria for determining quantum of maintenance. 

Criteria for Determining Quantum of Maintenance:

Why a spouse (husband or wife) seek maintenance? The purpose of maintenance is to save either of the spouse from financial crisis and tough time away from their marital home. They too deserve a better life and should not face hardship just because their marriage got failed. Hence, the laws provided for maintenance are gender-neutral i.e. in the eyes of law both  husband or wife are equal and the maintenance amount(quantum)  should be decided neutrally.    Courts have not prescribed any set formula in determining the quantum (amount) of maintenance.

Hon’ble Supreme Court by way of this judgment determined the factors which should be identified and kept in consideration while determining the quantum of maintenance including a) status of the parties;

b) Reasonable needs of the wife and dependent children;

c) Whether the applicant is educated and professionally qualified;

d) Whether the applicant has any independent source of income;

e) Whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home;

f) Whether the applicant was employed prior to her marriage;

g) Whether she was working during the subsistence of the marriage;

h) Whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; and

i) Reasonable costs of litigation for a non-working wife.

Apart from the factors stated above, Supreme Court also provided for additional factors in determining the quantum of maintenance including:

a) Age and employment of parties;

b)  Right to residence (shared household by the couple);

c) Where Wife is earning some income; maintenance of minor children; and

d) Serious disability  ill health of her, child/ren, family members and relatives, if any.

Case No: CRIMINAL APPEAL NO. 730 of 2020 (arising out of SLP (Crl.) No.9503/2018)

Referred Acts in the Judgement:

• The Code of Criminal Procedure (CrPC), 1973
• The Protection of Women from Domestic Violence Act (DVA), 2005
• Hindu Marriage Act (HMA), 1955
• Special Marriage Act (SMA), 1954
• Hindu Adoption and Maintenance Act (HAMA), 1956

Summary of the Case:

The Wife (Neha) filed an interim application u/s 125 CrPC claiming maintenance for herself and their son by her husband (Rajnesh). Family Court granted her a favourable Order of Rs.15,0000/- p.m. and Rs.5,000/-p.m. to their child to be paid by the Husband (Rajnesh). This Order was challenged by the Husband by way of a Criminal Writ Petition in Bombay High Court (Nagpur Bench) wherein the Court affirmed the Order of the Family Court and dismissed the Criminal Writ Petition. Husband lastly appealed to the Supreme Court. The Hon’ble Court awarded additional costs and relevant Order in maintenance of the Wife and their son by the Husband and also provided detailed guidelines on the fourth issue amongst the five (5) problems mentioned in the judgment that is issue of date from which maintenance to be awarded. 

In this Judgement Hon’ble Supreme Court observed and analysed all the precedents and regulatory frameworks used to decide a date from which maintenance can be awarded.

What should be the date from which Maintenance to be Awarded?

Hon’ble court observed that since there is no uniform regime and there are multiple practices adopted by the family courts across the country to decide the date from which the maintenance can be awarded. Hon’ble court also observed that there are three possibilities mostly adopted as the maintenance date:

a) Date on which the application for maintenance was filed;

b) Date of the order granting maintenance;

c) Date on which the summons was served upon the respondent.

Hon’ble court observed various precedent & judgements from different family courts and reached to the conclusion that family matters take a lot of time for their disposal and this delay is not in favour of justice and against the human rights & basic dignity of the individual.

Hon’ble court also provided the rationale for the above direction that it will enable the wife to survive  the financial tough time because if a dependent spouse loses its financial strength then it became very challenging to represent themselves before the court.  

To bring uniformity and consistency in the orders passed by all the Courts Hon’ble Supreme Court’s direction is very clear that the date on which  the maintenance application is filed will be considered as the date from which Maintenance can be awarded.  Hon’ble court also observed that the right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant.