Matters Relating To Guardianship And Custody Of Children

Child Custody

Recent Development on Child Custody

Child Custody- “The children are neither to be treated as chattels; nor as mere play-things for their parents” said Delhi High Court.

After the break down of marriage or separation of spouses, the children are always the most affected parties. Children are sensitive and their needs are the utmost priority while deciding the custody. The most important factor while deciding the custody should be the interest of the children.

Recently in the case of Soumitra Kumar Nahar v. Parul Nahar[1]

The Supreme Court held that no matter who wins in a custody battle, “the child is always the loser”.

  • In the given case the couple had some petty matrimonial issues that arose soon after their second child was born in the year 2008.
  • Personal allegations led the husband to file Guardianship Petition under the Guardian and Wards Act, 1890. Further a suit filed for divorce on grounds of adultery and cruelty. 
  • The husband, Soumitra Kumar Nahar on the 4th of September, 2015 challenged the decision of the Delhi High Court wherein the wife, Parul Nahar was partially allowed to comply with the consent terms in regard to the visitation rights to meet their daughter Sanjana and son Shravan. Rights to meet daughter were declined and it was observed that if the daughter wishes to meet her father she could do so. 
  • An order came, given to Dr. Achal Bhagat (Psychotherapist) to find out the background facts relating to the relationship of the children with their father Soumitra Kumar Nahar and paternal grandparents before they joined the sole custody of their mother. However, the parental grandparents die before the judgment passed.


In the matter the parents were unable to settle the terms for custody of their children. To which, a bench of Justices A M Khanwilkar and Ajay Rastogi said in such cases, “it is the children who pay the heaviest price as they are shattered when the court by its judicial process tells them to go with the parent whom he or she deems fit”. No matter who wins the battle, the children always pay the price.

The court said that “the rights of the child should respect as he/she is entitle to the love of both the parents” and underlined that a breakdown of marriage “does not signify the end of parental responsibility”.

The bench also focused on the fact that while deciding a custody dispute, “primary and paramount consideration is always the welfare of the child”.

Bench Ruled

If the welfare of the child so demands, then technical objections cannot come in the way. However, while deciding the welfare of the child. It is not the view of one spouse alone which has to be taken into consideration. The courts decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle,” the bench rule.

In the case, the Supreme Court noted that the Delhi High Court also made an attempt to effect a settlement. Between the parents. The judgment also note that the Supreme Court did efforts “to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents came forward and the sufferings of the children shadowed”.

The judgment also referred to the report of a psychotherapist. Which said “to find out the background facts regarding the relationship of the children with their father. And paternal grandparents before they joined the sole custody of their mother”. Which had caused the death of the grandparents to the fight between the couple. “It is not fortunate to notice that because of a warpath of the couple. Both the paternal grandparents died during pendency of the proceedings,” the judgment said.

Bench Statement

It is a message to the litigating parties to introspect and take stock of their deeds. And find out a reasonable amicable solution of the on­going matrimonial discord to secure peace and of their better future,” the bench said.

The Supreme Court also said that the interim arrangement in 2017 order, wherein it decide the way the two children would spend their Dussehra, Diwali and winter vacations with each parent, and the subsequent directions would continue. It gave freedom to the parties to file independent proceedings for custody or guardianship of the minor children before the competent court.

Having discussed the judgement of the Supreme Court. It’s clear that even judiciary paramount the interests of the children over other factors. Children are sensitive and vulnerable and parents for their selfish reasons shouldn’t treat children like their property. Parents should try and reach a settlement that ensures the interest of the children as well.


[1] CIVIL APPEAL NO(S).1671 OF 2020

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