New Delhi: The Supreme Court has granted a woman exclusive custody of her special-needs daughter and permitted the child to adopt the religion and surname of her stepfather, overriding a mutual divorce settlement that re…

New Delhi: The Supreme Court has granted a woman exclusive custody of her special-needs daughter and permitted the child to adopt the religion and surname of her stepfather, overriding a mutual divorce settlement that required the girl to be raised according to the Islamic tenets of her biological father.A bench of Justices J B Pardiwala and K Vinod Chandran also quashed a POCSO case registered against the biological father, ended related civil contempt proceedings and disallowed his visitation rights. The court exercised its extraordinary powers under Article 142 of the Constitution, stressing that the order was confined to the special and peculiar facts of the case.SC overturns lower courts, restores dismissal of 1987 suit over ‘suspicious’ property dealThe parents had entered into a memorandum of settlement on December 1, 2018, which led to a mutual consent divorce decree by the Principal Judge, Family Court, Bangalore, on January 28, 2019 (drawn up on February 5, 2019). The settlement provided for joint custody and visitation rights for the father, along with an undertaking by the mother to bring up the child in accordance with the father’s religion.The mother later faced civil contempt proceedings in the Karnataka High Court for alleged violation of the visitation terms. Meanwhile, an FIR was registered against the father, now residing in Dubai, on September 11, 2024, at Hebbagodi police station in Bangalore under Sections 323 and 506 of the IPC and Sections 8/12 of the POCSO Act. The father sought quashing of the case and approached the Karnataka High Court with a writ petition. The present proceedings arose from transfer petitions filed by the mother seeking transfer of the POCSO case to Mumbai and the connected writ petition to the Bombay High Court.After interacting extensively with both parents and the child, the bench held that its primary concern was the well-being of the girl, who has special needs and faces difficulties in adjustment. The court observed that continued prosecution under the IPC and POCSO Act would only subject the child to the trauma of reliving an alleged incident — the reality of which the bench expressed misgivings about — while drawing the remarried parents and their families into prolonged distress.“We can only hope that the seed of misgiving against her father, implanted in the child’s mind, does not catch roots and withers away in course of time. But till then any association between them would run contrary to the well-being of the child,” the bench said, while discontinuing visitation rights.The court took note of the mother’s plea that the child had developed a close affinity with the stepfather who is now caring for her. The child had also expressed a desire to take his surname, questioning why she did not share the name of the father living with her. “We cannot but bow down to the desire expressed by the child, communicated to us through her mother, especially in the peculiar circumstances coming out in this case,” the bench said.Given the parents’ different communities and the impracticality of enforcing the earlier religious undertaking, the bench held that it would be in the fitness of things to permit the mother to decide the child’s affairs, including changes in school, citizenship and identity records.”It would be in the fitness of things that the mother be permitted to carry out the affairs of the child as she would desire, even if it goes against the terms of the memorandum of settlement,” the bench said.With the mother’s consent, the court quashed the POCSO case, closed the contempt proceedings and the father’s writ petition, and set aside the terms of the 2018 settlement while upholding the decree of divorce. The mother will henceforth have exclusive custody of the child.

Source: Deccan Herald