The supreme court (SC) sought to infuse sanity on Wednesday in couples litigating for divorce or custody of children
NEW DELHI: The supreme court (SC) sought to infuse sanity on Wednesday in couples litigating for divorce or custody of children as it raised a poser, “If marriages are made in heaven…why make matrimonial home hell.”
Ordering custody of a child to his mother, SC regretted the “disturbing phenomenon that a large number of cases relating to divorce or judicial separation are flooding the courts”.
“An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950, have led to such a situation.
“In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them,” a bench of justices Arijit Pasayat and GS Singhvi observed while scrapping the rich father’s appeal against a Delhi high court order directing him to hand over custody of the child to his mother, a school teacher living with her parents.
Upholding the provisions of the Hindu Marriage Act, the bench said, “Actions may be bad, but not the section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought.
“Merely because such a course is available, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken.”
The court also suggested that people should not resort to litigation leading to marriage break-ups. It shouldn’t be unless it has an inevitable result; courts should try to bring about conciliation, the judges said.
The emphasis should be on saving a marriage, not breaking it, the court said, adding, “This is more important in cases where children bear the brunt of dissolution of marriage.
“One must not lose faith in humanity. It is an ocean; if a few drops are dirty, the ocean does not become dirty. If nothing ever went wrong in one’s life, he or she would never have a chance to grow stronger.”
Laying emphasis on the welfare of children caught in matrimonial discords, the court said the best way to protect child rights was to make them happy. “It is unfortunate that in their (parents’) fight more often on account of egoism the children suffer, more
particularly when the child is a girl.”
“The marital discord sometimes reaches a stage where the parties are unmindful of what psychological, mental and physical impact it has on children. It is worse when there is a single child.”
The judges also rejected the plea of the father that he was affluent enough to take care of the child in a far better way than his mother.
“Merely because there is no defect in his personal care and his attachment to his children, he would not be granted custody,” the court ruled.
b_rakesh@dnaindia.net
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