1993 JTR(SC) 52
1993 1 APLJ 60 ; 1993 3 AWC 1746 ; 1993 1 BLJR 536 ; 1993 CriLR 182 ; 1993 1 Crimes(SC) 556 ; 1993 1 DMC 135 ; 1993 EastCrC(SC) 285 ; 1993 1 HinduLR 270 ; 1993 1 JT 229 ; 1993 2 RCR(Cri) 5 ; 1993 1 Scale 119 ; 1993 2 SCC 6 ; 1993 SCC(Cri) 485 ; 1993 1 SLJ 1088 ; 1993 KHC 1191 ; 1993 1 KLT(Online) 1091
SUPREME COURT OF INDIA
BEFORE KULDIP SINGH AND B.P. JEEVAN REDDY, JJ.
CHANDRAKALA MENON (MRS) AND ANOTHER
Versus
VIPIN MENON (CAPT.) AND ANOTHER
Criminal Appeal No. 30 of 1993{Arising out of SLP (Crl.) No. 2906 of 1991}
Decided on 14-1-1993
Act
Referred
:CRIMINAL PROCEDURE CODE : S.482
GUARDIANS AND WARDS ACT : S.7
HINDU MARRIAGE ACT : S.13(b), S.26
HINDU MINORITY AND GUARDIANSHIP ACT : S.13, S.6
INDIAN PENAL CODE : S.361
(A) The Hindu Marriage Act, 1955 (Sections 13-B and 26), the Guardian and Wards Act (Sections 7 and 6), the Hindu Minority and Guardianship Act, 1956 (Section 13), the Criminal Procedure Code (Section 482), and the Indian Penal Code (Section 361) collectively frame the adjudication of matrimonial dissolution, child custody, and jurisdictional interplay. Section 13-B of the Hindu Marriage Act provides the decree of divorce by mutual consent, which the court invoked to dissolve the marriage with immediate effect, while Section 26 enables appeals to the High Court. The Guardians and Wards Act, Section 7, and the Hindu Minority and Guardianship Act, Sections 13 and 6, govern the custody and welfare of the minor, placing paramountcy on the child's welfare above legal rights. Section 482 of the Criminal Procedure Code and Section 361 of the Indian Penal Code are engaged in addressing the quashing of custodial proceedings and safeguarding against wrongful restraint, thereby delineating the interplay between matrimonial, custodial, and criminal jurisdictional principles in this dispute.
(B) Key legal principles include that divorce by mutual consent under Section 13-B of the Hindu Marriage Act requires irretrievable breakdown and living apart for over one year; the welfare principle under the Guardians and Wards Act and Hindu Minority and Guardianship Act mandates that custody be awarded based on the child's best interest, not merely on natural parentage; and natural guardians are not absolved of accountability in custodial matters; additionally, custodial interference does not attract kidnapping charges where the natural guardian is involved, as per Section 482 CrPC and Section 361 IPC.
Facts of the case:
The parties married in 1984 and had a daughter in 1985. They moved to the USA in 1987, returned briefly, and separated in 1990, with the child residing with maternal grandparents in Bangalore. A joint divorce petition was filed in 1992, while the respondent took the child to Bombay, prompting a kidnapping complaint. The High Court quashed criminal proceedings, and the appeal challenges that order. The court also addresses parallel divorce and custody proceedings.
Findings of Court:
The court upheld the High Court's quashing of criminal proceedings, found an irretrievable breakdown of marriage, granted divorce by mutual consent under Section 13-B, awarded custody of the child to the mother based on welfare considerations, and directed visitation and annual visits to balance parental rights.
Issues:
Whether the High Court was justified in quashing the criminal proceedings under Section 482 CrPC; whether the marriage had irretrievably broken down warranting divorce under Section 13-B of the Hindu Marriage Act; and who is the appropriate custodian of the minor child in light of statutory welfare principles.
Ratio Decidendi:
The court applied the welfare principle under the Guardians and Wards Act and Hindu Minority and Guardianship Act to prioritize the child's best interest, determined that natural guardianship does not preclude quashing custodial interference where justified, and invoked Section 13-B divorce on the basis of irretrievable breakdown and separation, while harmonizing concurrent matrimonial, custodial, and criminal jurisdictions.
Result:
Decree of divorce granted under Section 13-B, custody awarded to the mother with visitation terms for the father, and appeal disposed of accordingly.
(A) The Hindu Marriage Act, 1955 (Sections 13-B and 26), the Guardian and Wards Act (Sections 7 and 6), the Hindu Minority and Guardianship Act, 1956 (Section 13), the Criminal Procedure Code (Section 482), and the Indian Penal Code (Section 361) collectively frame the adjudication of matrimonial dissolution, child custody, and jurisdictional interplay. Section 13-B of the Hindu Marriage Act provides the decree of divorce by mutual consent, which the court invoked to dissolve the marriage with immediate effect, while Section 26 enables appeals to the High Court. The Guardians and Wards Act, Section 7, and the Hindu Minority and Guardianship Act, Sections 13 and 6, govern the custody and welfare of the minor, placing paramountcy on the child's welfare above legal rights. Section 482 of the Criminal Procedure Code and Section 361 of the Indian Penal Code are engaged in addressing the quashing of custodial proceedings and safeguarding against wrongful restraint, thereby delineating the interplay between matrimonial, custodial, and criminal jurisdictional principles in this dispute.
(B) Key legal principles include that divorce by mutual consent under Section 13-B of the Hindu Marriage Act requires irretrievable breakdown and living apart for over one year; the welfare principle under the Guardians and Wards Act and Hindu Minority and Guardianship Act mandates that custody be awarded based on the child's best interest, not merely on natural parentage; and natural guardians are not absolved of accountability in custodial matters; additionally, custodial interference does not attract kidnapping charges where the natural guardian is involved, as per Section 482 CrPC and Section 361 IPC.
Facts of the case:
The parties married in 1984 and had a daughter in 1985. They moved to the USA in 1987, returned briefly, and separated in 1990, with the child residing with maternal grandparents in Bangalore. A joint divorce petition was filed in 1992, while the respondent took the child to Bombay, prompting a kidnapping complaint. The High Court quashed criminal proceedings, and the appeal challenges that order. The court also addresses parallel divorce and custody proceedings.
Findings of Court:
The court upheld the High Court's quashing of criminal proceedings, found an irretrievable breakdown of marriage, granted divorce by mutual consent under Section 13-B, awarded custody of the child to the mother based on welfare considerations, and directed visitation and annual visits to balance parental rights.
Issues:
Whether the High Court was justified in quashing the criminal proceedings under Section 482 CrPC; whether the marriage had irretrievably broken down warranting divorce under Section 13-B of the Hindu Marriage Act; and who is the appropriate custodian of the minor child in light of statutory welfare principles.
Ratio Decidendi:
The court applied the welfare principle under the Guardians and Wards Act and Hindu Minority and Guardianship Act to prioritize the child's best interest, determined that natural guardianship does not preclude quashing custodial interference where justified, and invoked Section 13-B divorce on the basis of irretrievable breakdown and separation, while harmonizing concurrent matrimonial, custodial, and criminal jurisdictions.
Result:
Decree of divorce granted under Section 13-B, custody awarded to the mother with visitation terms for the father, and appeal disposed of accordingly.
ORDER
1. Special leave granted.
2. Appellant Chandrakala married respondent Vipin Menon on January 16, 1984. A female child Soumya was born to them on August 26, 1985. In August 1987 husband and wife went to U.S.A. leaving the minor child with her maternal grandparents at Bangalore. In June 1989 Soumya joined her parents in America. In May 1990 Soumya was sent back to Bangalore to live with her maternal grandparents and since then for most of the time she has been living with them. The appellant is doing her research for the degree of Ph.D. in America. Unfortunately differences arose between husband and wife during their stay in America and it became difficult for them to run their married life smoothly. In spite of daughter Soumya being a uniting factor they could not overcome their differences and ultimately a situation came when it became difficult rather impossible for them to live together. It is alleged by the appellant that she and her husband entered into a settlement to get divorce by mutual consent and it was also agreed that Soumya would stay with her maternal grandparents at Bangalore. It is further alleged that the respondent was given a fixed deposit receipt for Rs 1,50,000 which was in the joint name of the appellant and respondent, as a condition of the settlement. It is not necessary for us to delve into these allegations. The fact remains that the parties filed a joint petition for divorce by mutual consent before the District Judge Palakkad on July 3, 1992. Respondent Vipin Menon has filed an application for custody of the child under the Guardian and Wards Act read with Hindu Minority and Guardianship Act before the Family Court at Bangalore. Another divorce petition filed by him is pending before the Family Court, Bombay.
3. This appeal has arisen out of peculiar circumstances. While Soumya was residing with her maternal grandparents at Bangalore, Vipin Menon came to see her on April 29, 1992 and in the process took her away to Bombay. Mr V.P.R. Nambiar the maternal grandfather lodged a complaint at the police station alleging that Vipin Menon and his sisters kidnapped Soumya at about 10.30 a.m. on that day. Although no case was registered by the police against Vipin Menon but finally the Chief Metropolitan Magistrate Bangalore took cognizance of the matter and directed Vipin Menon to produce the child on May 15, 1992. The child was not produced on the said date and a telegram was sent by Vipin Menon seeking adjournment on the ground that he was held up at Bombay due to unavoidable reasons. The Magistrate refused to grant adjournment and passed an order to the effect that Nambiar was entitled to the custody of the child. The Magistrate directed Vipin Menon to hand over the child to the police so that the custody be restored to Nambiar. He further directed that if Vipin Menon failed to produce the child before the police then the police should register a case against him and also proceed to declare him a proclaimed offender. Vipin Menon challenged the order of the Magistrate by way of petition under Section 482, Criminal Procedure Code. The High Court quashed the order of the Magistrate by reaching a finding that Vipin Menon being a natural guardian of Soumya could not be charged with the offence of kidnapping. This appeal by Chandrakala and her father is against the order of the High Court.
4. We are of the view that in the facts and circumstances of this case the High Court was justified in quashing the criminal proceedings against respondent Vipin Menon. No fault can be found with the High Court order and we uphold the same.
5. Both husband and wife before us are highly educated and belong to well-to-do families. The husband is a qualified engineer and Chandrakala is doing her Ph.D. in America. We are of the view that for doing complete justice between the parties in this appeal it is necessary to settle all the disputes pending between them.
6. We have heard learned counsel for the parties at length. We have talked to the husband and wife in the presence of their learned counsel as well as separately and individually. There is no scope of settlement between them. We are of the view that the marriage has irretrievably broken down and there is no chance of their coming together. Petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955 (the Act) is pending since July 3, 1992 in the Court of District Judge, Palakkad. The parties are living separately for over a period of one year. We grant decree for divorce by mutual consent under Section 13-B of the Act and dissolve the marriage between them with immediate effect. The divorce petition under Section 13-B of the Act pending in the Court of District Judge, Palakkad and also the divorce petition filed by Vipin Menon before the Family Court at Bombay shall stand disposed of in terms of our order.
7. The marriage between the parties having been dissolved the delicate question for our consideration is the custody of minor Soumya. We have given our thoughtful consideration to this aspect. It is no doubt correct that Vipin Menon being the father of the minor child is her natural guardian. The question regarding the custody of a minor child cannot be decided on the basis of the legal rights of the parties. The custody of a child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. Soumya is an intelligent girl. We have talked to her in the Chamber and gathered her wish and sentiments. She has ample love and affection for both her parents. She likes her maternal grandparents also. After examining every possible angle in this respect, we have come to the conclusion that it would be in the interest and welfare of minor Soumya that she should be permitted to be in the custody of her mother Chandrakala. We order accordingly. We direct that the custody of Soumya be handed over to her mother Chandrakala forthwith.
8. Both Chandrakala and her father Nambiar have undertaken before us to bring Soumya from America once a year to India so that Vipin Menon can have the company of his daughter. They have further undertaken that in case Chandrakala herself is not in a position to visit India once in a year she shall arrange to send Soumya to India so that she can live with her father for some time. Mr Vipin Menon is at liberty to visit and meet Soumya in America whenever he likes. The application for custody being Case G & WC No. 42 of 1992 filed by Vipin Menon under Guardian and Wards Act read with Hindu Minority and Guardianship Act before the Family Court, Bangalore shall stand disposed of in terms of our order. The parties are at liberty to approach this Court if and when it becomes necessary due to change of circumstances. The appeal is disposed of in the above terms.
For Citation: 1993(2) SCC 6