SC raises issue of multiple statutes on custody of child

PTI, Feb 9, 2022, 8:01 PM IST

New Delhi: The Supreme Court on Wednesday asked why the legislature was not trying to bring the legal aspect pertaining to custody of a child, stuck in between parents fighting matrimonial litigations, under “one umbrella” legislation and referred to several existing statutes governing the issue of custody saying they raised the number of litigations.

A bench headed by Chief Justice N V Ramana said there are at least four or five statutes, including the Guardians and Wards Act, 1890 and the Protection of Women from Domestic Violence Act, 2005, which deal with the issue and they give rise to several litigations arising from same matrimonial dispute.

The question is that already there enough Acts. There are this Maintenance Act, the Guardians and Wards Act and the Protection of Women from Domestic Violence Act. Four, five Acts are there and they are moving from one court to another… This is the time for the legislature to look into these things, the CJI said.

Why don’t the legislature look at it with this angle… Why don’t you bring all these under one umbrella in one go, said the bench, also comprising justices A S Bopanna and Hima Kohli.

At the outset the bench told Attorney General K K Venugopal that the litigations are rising due to the fact that there are many laws on the issue.

Venugopal said there have been laws governing the issue of custody of a child and a litigant cannot directly approach the high court to seek the custody just on the ground that he or she will have to go many courts under several laws.

He referred to the doctrine of Parens patriae and said that it granted inherent powers to the court to decide such an issue keeping in mind the welfare of the child.

The child’s interest is the only consideration or the main consideration in deciding the custody or visitation rights, he said.

The Guardian and Wards Act is the one Act where you can seek the right and if that is refused then you can ask for visitation right. Visitation rights will be ancillary to the custody rights. And if a man is not given the custody or he does not want custody then he will be entitled for visitation rights under the law, he said.

He pointed to Acts like the Guardians and Wards Act or the Hindu Marriage Act or the Special Marriage Act, saying that each Act, has a separate section for seeking custody of the children.

This is what I ask. The question is, now look at the thing, we want a simple solution to the problem and see this is a simple case where a husband wants visitation rights and there is no dispute on law.., the CJI said, adding, The question is why don’t the legislature look at it with this angle .

Venugopal sought two weeks to file a written note on the issue which was allowed by the bench.

The apex court was hearing an appeal filed by one Hemant Baburav Vasante against the 2017 order of the Gujarat High Court in custody battle of a child arising out of matrimonial dispute.

The bench, in 2018, had issued notice to the Attorney General for India seeking his assistance in the matter.

Since the petition raises an important question of law which is, whether an adult male member other than an aggrieved person, has a right to file an application under Section 21 of the Protection of Women from Domestic Violence Act, 2005, for seeking visitation rights , let the notice be issued to the Attorney General, the bench had ordered.