Selvaraj vs Revathi

2023 INSC 1054 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2023 (Arising out of S.L.P.(Crl.) No.9914 of 2018)

SELVARAJ … Appellant(s)

VERSUS REVATHI … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

Leave granted.

2. Order1 passed by the High Court2 is under challenge

before this Court.

3. The present appeal arises out of a dispute pertaining to

custody of the child born out of the wedlock of the parties to the appeal.

The marriage between the parties was solemnised on 16.05.2010. Out

of the wedlock, the child, namely, Manish whose custody is the subject-

matter of dispute, was born on 18.02.2011. Thereafter, the matrimonial Signature Not Verified Digitally signed by SONIA BHASIN Date: 2023.12.07 11:34:52 IST Reason: 1 Order dated 04.10.2018 IN Crl.R.C.(ML) No.88of 2017 2 Madurai Bench of Madras High Court 1 dispute arose between the parties. Divorce Petition3 was filed by the

appellant in the year 2014. The respondent filed Complaint4 under

Section 12 of the Act5 claiming maintenance. Further prayer was made

for grant of interim custody of the child to the respondent. Vide order

dated 22.05.2014, the Magistrate6 allowed the application and directed

the appellant to hand over custody of the child to the respondent. The

appellant filed application7 seeking revocation of the earlier order

dated 22.05.2014 passed by the Magistrate directing handing over

custody of the child to the respondent. The aforesaid application was

dismissed by the Magistrate vide order dated 20.11.2014. The said

order was challenged by the appellant by filing appeal before the

Principal District Judge, Pudukottai. The same was dismissed vide

order dated 31.01.2017. The High Court in revision filed by the

appellant upheld the aforesaid order. The same is under challenge

before this Court in the present appeal.

4. Despite there being no stay, the order directing the

appellant to hand over custody of the child to the respondent had not

been complied with. The proceedings of custody were initiated in May

3 H.M.O.P. No. 12 of 2014 4 M.C.No.4 of 2014 5 Protection of Women from Domestic Violence Act, 2005 6 Judicial Magistrate, Pudukottai 7 Crl.M.P. No. 4929 of 2014 2 2014 and vide order dated 22.05.2014, the appellant was directed to

hand over custody of the child to the respondent when he was three

years and three months old. However, till date custody of the child

continues with the appellant.

5. A perusal of the paper book shows that to explore the

possibility of settlement of dispute between the parties, vide order

dated 02.12.2019, the matter was referred to the Mediation Centre8 in

the High Court. Report dated 19.11.2020 was received from the

Mediator stating that the respondent was not ready to mediate and the

child, who had completed nine years and nine months as on that date,

was not willing to go with the mother.

6. On 19.10.2023, after hearing learned counsel for the

parties, this Court deemed it appropriate to interact with the child. The

appellant was directed to bring the child to the court and the

respondent was also directed to appear.

7. We had interacted with the child in Court. He flatly refused

not only to go with his mother but even talk to her. We do not wish to

go into the reasons behind that but the fact remains that from the very

beginning he is living with the father-appellant. In any matrimonial

8 Tamil Nadu Mediation and Conciliation Centre, Madurai 3 dispute, it is always the child/children who bear the brunt. For proper

growth of a child, love and affection of both the parents is necessary.

In any matter of custody of child, his welfare is paramount

consideration. Keeping that in view and seeing the attitude of the child,

we thought it appropriate to request Ms. V. Mohana, learned senior

counsel to interact with the child. The matter was to be listed on

22.11.2023.

8. When the case was taken up for hearing on 22.11.2023, Ms.

V. Mohana, learned senior counsel, who was requested by this court to

submit her report after having interacted with the child at different

times and also the parents. She had even counselled all of them. 8.1 A perusal of the report submitted by Ms. V. Mohana,

learned senior counsel shows that during interaction with the parties to

the dispute, she had made numerous efforts to break the ice. As per the

report, initially the child was averse even to see his mother. After Ms.

V. Mohana apprised him importance of the mother, he reluctantly

agreed to sit with the mother but with minimal interaction. He is stated

to be an intelligent child. Though initially he said that he can meet the

mother twice a year, however later on he consented for a monthly

meeting at a public place to be scheduled on a Sunday. He was averse

4 to visit the Court. He agreed that his mother-respondent can make

phone calls to him.

9. It is always good for the upbringing of the child that he has

love and affection of both the parents, but some how in the case in hand

for the reason, we do not wish to go into, the child from the initial time

remained deprived of that love and affection of the mother. With the

efforts of Ms. V. Mohana, learned senior counsel, the child may also get

affection of his mother though he may live with his father continuously

where he is stated to be residing since birth.

10. Once the parties have agreed for conversation on phone,

day, time and venue of the meeting can also be mutually agreed. The

time of meeting can also be as per convenience of the parties and study

of the child.

11. As suggested by Ms. Mohana, learned senior counsel an

effort can be made by the Mediation Centre attached with the High

Court for an interaction of the child with a Counsellor. However, as the

child is averse to visit the court, it may be planned at a place other than

the Court Complex. The child at present is 12 years and 9 months old.

He is in a position to take decisions. Considering the interaction we had

with the child when he appeared in court and the report submitted by

Ms. V. Mohana, Senior Advocate, in our opinion, it would not be in the 5 interest for upbringing of the child that his custody is given to the

respondent-mother at this stage. However, as agreed, the mother can

call him and will have visitation rights, as noticed above.

12. The present appeal is disposed of with the aforesaid

modification in the impugned order.

13. Before parting with the order, we place on record our

appreciation for the sincere efforts made by Ms. V. Mohana, Senior

Advocate.

…..……………..J (VIKRAM NATH)

…………………..J (RAJESH BINDAL)

New Delhi December 6, 2023.

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