Children always lose in custody battle, pay heaviest price: SC

Children are "always the losers" and pay the "heaviest price" in a custody battle as they are deprived of love and affection of their parents without any fault on their part, the Supreme Court said on Tuesday.

The apex court, which observed that rights of the child need to be respected as he or she is entitled to love of both the parents, said breakdown of marriage does not signify the end of "parental responsibility".

It said courts should decide the issue of custody while keeping in mind the best interest of the child who is the "victim" in the custody battle, and if efforts to settle matrimonial dispute through the process of mediation do not fructify, then courts should make an endeavour to resolve it as expeditiously as possible because with every passing day the child pays a heavy price.

A bench of justices A M Khanwilkar and Ajay Rastogi made the observations in a judgement while dealing with a matter in which a couple had been embroiled in a matrimonial dispute since long.

"In a custody battle, no matter which parent wins but the child is always the loser and 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," it said The top court said while deciding the matter of custody of child, "primary and paramount consideration is always the welfare of the child" and "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 should 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," it said.

While dealing with the case before it, the bench said Delhi High Court had earlier made an endeavour to resolve the dispute between the parents keeping in view the paramount interest of children, but "if the parents are bent upon to lead to a separation or divorce, it is always the children who pay the heaviest price and are the sufferers."

"Delay in decision certainly cause a great loss to the individual and deprive him/her of their rights which are protected under the Constitution and with every passing day, the child pays heavy price of being deprived of the love and affection of their parents for which they were never at fault  but are always the loser which at no stage could be compensated monetarily or otherwise," the bench said.

The bench said that in this case, the top court has always tried to resolve the disputes amicably but "the ego of the warring parents" came forward and the suffering of their two children are "shadowed".

"In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grandchildren and because of this matrimonial tussle between the parties, they have lost their lives," it noted.

The bench said "very few are fortunate" to have this pleasure in the fag end of their life where the grandparents remain in company of their children and also grandchildren.

"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 apex court said that interim arrangement made by it in its September 2017 order, where it had decided as to how the two children would spend their Dussehra, Diwali and winter vacations with each parent, and its subsequent directives would continue.

It granted liberty to the parties to file independent proceedings for custody or guardianship of the minor children before the competent court.

It said that divorce petition filed by the husband before the court concerned should be decided by December 31, 2020.

During the adjudication of the matter, the court had in March 2017 said that both the children be placed in a boarding school as it was not in their best interest to continue with either of their parents.