Child
Visitation right to father.
“In the
application dated 9.5.2008 filed before the Additional District Judge, Delhi,
the mother made it clear in paragraph 12 that she is ready to furnish any
undertaking or bond in order to ensure her return to India and to make
available to the father, his visitation rights subject to the education of the
child. This Court finds that so far as the order which had been passed by the
High Court, affirming the order of the Trial Court, the visitation rights of
the appellant-father have been so structured as to be compatible with the
educational career of the child. This Court finds that in this matter judicial
discretion has been properly balanced between the rights of the appellant and
those of the respondent.”
IN THE SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO.2704 OF 2010
(Arising
out of SLP(C) No.19935/2009) Vikram Vir Vohra ..Appellant(s) Versus
Shalini
Bhalla ..Respondent(s) J U D G M E N T
GANGULY,
J.
1.
Leave granted.
2.
This appeal by the husband, impugns the judgment and order dated 27.07.09 of
Delhi High Court which upheld the judgment and order of the Additional District
Judge passed in relation to applications filed by both the parties under
Section 26 of the Hindu Marriage Act (hereinafter "the Act").
The impugned judgment 1
permitted the respondent-wife to take the
child with her to Australia.
3.
The material facts of the case are that the parties to the present appeal were
married as per the Hindu rites on 10.12.2000. A child, Master Shivam, was born
to them on 05.08.02. In view of irreconcilable differences between the parties
they had agreed for a divorce by mutual consent under Section 13-B of the Act
and filed a petition to that effect and on 05.09.06 a decree of divorce on
mutual consent was passed by the Additional District Judge, Delhi.
4. As
regards the custody of the child there was some settlement between the parties
and according to the appellant the same was incorporated in paras 7 and 9 of
the petition filed under Section 13-B (2) of the Act. Those paragraphs are as
under:
"The
parties have agreed that the custody of the minor son Master Shivam shall
remain with the mother, petitioner No.1 who being the natural mother is also
the guardian of the son Master Shivam as per law laid down by the Supreme Court
of India. It is, however, agreed that the father petitioner shall have right of
2
visitation only to the extent that the child
Master Shivam shall be with the father, petitioner No.2, once in a fortnight
from 10 AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child
Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM
on a Saturday where the child is with his mother. And on the same day at by
6.30 PM, the petitioner No.2 would leave the child back at the same place with
the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1
the mother shall collect the child from petitioner No.2 on the same day. Both
parties undertake before this Hon'ble Court that they would not create any
obstruction in implementation of this arrangement.
The
petitioner No.1 shall take adequate care of the child in respect of health,
education etc., at her own cost. In case the petitioner No.1 changes her
address or takes the child outside Delhi, she shall keep petitioner No.2
informed one week in advance about the address and telephone nos. and the place
where the child would be staying with the mother, to enable the petitioner No.2
to remain in touch with the child.
The
petitioner No.1 has received all her Stridhan and other valuables, articles and
other possessions, and nothing remains due to her from the petitioner No.2. The
petitioner No.1 and the child Shivam has no claim to any property or financial
commitment from petitioner No.2 and all her claims are settled fully and
finally".
5.
Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08
and the 3
appellant-husband also filed applications
dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of
those terms and conditions about the custody of the child.
6.
The respondent was basing her claim on the fact that she wanted to take the
child with her to Australia where she was employed for gain with a request to
revoke the visitation rights granted to the appellant for meeting the child.
This she felt will be conducive to the paramount interest and welfare of the
child. The appellant on the other hand sought permanent custody of the child
under the changed circumstances alleging that it is not in the interest of the
child to leave India permanently.
7.
The Trial Court vide its order dated 06.04.09 took notice of the fact that in
the joint petition of divorce, parties voluntarily agreed that the custody of
the child shall remain with the mother and father shall have only visiting
rights, in the manner indicated in the mutual divorce decree. The Court
modified the terms and 4
conditions of the custody and visitation
rights of the appellant about the minor child. By its order the Trial Court had
allowed the respondent to take the child with her to Australia but also
directed her to bring the child back to India for allowing the father
visitation rights twice in a year i.e. for two terms - between 18th of December
to 26th of January and then from 26th of June to 11th of July.
8.
Being aggrieved by that order of the Trial Court, the appellant appealed to the
High Court. It was argued by the appellant since no decree was passed by the
Court while granting mutual divorce, an application under Section 26 of the Act
does not lie and in the absence of specific provision in the decree regarding
the custody and visitation rights of the child, the Trial Court has no
jurisdiction to entertain the petition afresh after passing of the decree.
9.
The High Court took into consideration the provisions of Section 26 of the Act
and was of the view that the aforesaid provision is 5
intended to enable the Court to pass suitable
orders from time to time to protect the interest of minor children. However,
the High Court held that after the final order is passed in original petition
of divorce for the custody of the minor child, the other party cannot file any
number of fresh petitions ignoring the earlier order passed by the Court.
10.
The Court took into consideration that even if the terms and conditions
regarding the custody and visitation rights of the child are not specifically
contained in the decree, they do form part of the petition seeking divorce by
mutual consent. It was of the view that absence of the terms and conditions in
the decree does not disentitle the respondent to file an application under
Section 26 of the Act seeking revocation of the visitation rights of the
appellant.
11.
It is important to mention here that the learned Judge of the High Court had
personally interviewed the child who was about 7 years old 6
to ascertain his wishes. The child in
categorical terms expressed his desire to be in the custody and guardianship of
his mother, the respondent. The child appeared to be quite intelligent. The
child was specifically asked if he wanted to live with his father in India but
he unequivocally refused to go with or stay with him. He made it clear in his
expression that he was happy with his mother and maternal grandmother and
desired only to live with his mother. The aforesaid procedure was also followed
by the learned Trial Court and it was also of the same view after talking with
the child.
12.
Being aggrieved with the judgment of the High Court the appellant has
approached this Court and hence this appeal by way of Special Leave Petition.
13.
We have also talked with the child in our chambers in the absence of his
parents. We found him to be quite intelligent and 7
discerning. The child is in school and from
the behaviour of the child, we could make out that he is well behaved and that
he is receiving proper education.
14.
The child categorically stated that he wants to stay with his mother. It
appears to us that the child is about 8-10 years of age and is in a very
formative and impressionable stage in his life. The welfare of the child is of
paramount importance in matters relating to child custody and this Court has
held that welfare of the child may have a primacy even over statutory
provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli - (2008) 7 SCC 673, para 19, page
678]. We have considered this matter in all its aspects.
15.
The argument of the learned counsel for the appellant, that in view of the
provisions of Section 26 of the Act, the order of custody of the child and the
visitation rights of the 8
appellant cannot be changed as they are not
reflected in the decree of mutual divorce, is far too hyper technical an
objection to be considered seriously in a custody proceeding. A child is not a
chattel nor is he/she an article of personal property to be shared in equal
halves.
16.
In a matter relating to custody of a child, this Court must remember that it is
dealing with a very sensitive issue in considering the nature of care and
affection that a child requires in the growing stages of his or her life. That
is why custody orders are always considered interlocutory orders and by the
nature of such proceedings custody orders cannot be made rigid and final. They
are capable of being altered and moulded keeping in mind the needs of the
child.
17. In Rosy
Jacob vs. Jacob A Chakramakkal -
[(1973) 1 SCC 840], a three judge Bench of 9
this Court held that all orders relating to
custody of minors were considered to be temporary orders. The learned judges
made it clear that with the passage of time, the Court is entitled to modify
the order in the interest of the minor child. The Court went to the extent of
saying that even if orders are based on consent, those orders can also be
varied if the welfare of the child so demands.
18.
The aforesaid principle has again been followed in Dhanwanti
Joshi vs. Madhav Unde -
[(1998) 1 SCC 112].
19.
Even though the aforesaid principles have been laid down in proceedings under
the Guardians and Wards Act, 1890, these principles are equally applicable in
dealing with the custody of a child under Section 26 of the Act since in both
the situations two things are common; the first, being orders relating to
custody of a growing child and 10
secondly, the paramount consideration of the
welfare of the child. Such considerations are never static nor can they be
squeezed in a strait jacket. Therefore, each case has to be dealt with on the
basis of its peculiar facts.
20.
In this connection, the principles laid down by this Court in Gaurav
Nagpal vs. Sumedha Nagpalreported in (2009) 1 SCC 42 are very
pertinent. Those principles in paragraphs 42 and 43 are set out below:
"42.
Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and
declares that in any proceeding under the said Act, the court could make, from
time to time, such interim orders as it might deem just and proper with respect
to custody, maintenance and education of minor children, consistently with
their wishes, wherever possible.
43.
The principles in relation to the custody of a minor child are well
settled.
In determining the question as to who should be given custody of a minor child,
the paramount consideration is the "welfare of the child" and
not rights of the parents under a statute for the time being in
force".
11
21.
That is why this Court has all along insisted on focussing the welfare of the
child and accepted it to be the paramount consideration guiding the Court's
discretion in custody order. See
Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka - [AIR 1982 SC 1276], para 17.
22.
In the factual and legal background considered above, the objections raised by
the appellant do not hold much water.
23.
Now coming to the question of the child being taken to Australia and the
consequent variations in the visitation rights of the father, this Court finds
that the Respondent mother is getting a better job opportunity in Australia.
Her autonomy on her personhood cannot be curtailed by Court on the ground of a
prior order of custody of the child. Every person has a right to develop his or
her potential. In fact a right to development is a basic human right. The
respondent-mother cannot be asked to choose between her child 12
and her career. It is clear that the child is
very dear to her and she will spare no pains to ensure that the child gets
proper education and training in order to develop his faculties and ultimately
to become a good citizen. If the custody of the child is denied to her, she may
not be able to pursue her career in Australia and that may not be conducive
either to the development of her career or to the future prospects of the
child. Separating the child from his mother will be disastrous to both.
24.
Insofar as the father is concerned, he is already established in India and he
is also financially solvent. His visitation rights have been ensured in the
impugned orders of the High Court. His rights have been varied but have not
been totally ignored. The appellant-father, for all these years, lived without
the child and got used to it. 13
25.
In the application dated 9.5.2008 filed before the Additional District Judge,
Delhi, the mother made it clear in paragraph 12 that she is ready to furnish
any undertaking or bond in order to ensure her return to India and to make
available to the father, his visitation rights subject to the education of the
child. This Court finds that so far as the order which had been passed by the
High Court, affirming the order of the Trial Court, the visitation rights of
the appellant-father have been so structured as to be compatible with the
educational career of the child. This Court finds that in this matter judicial
discretion has been properly balanced between the rights of the appellant and
those of the respondent.
26.
In that view of the matter, this Court refuses to interfere with the order
passed by the High Court. The appeal is dismissed with the direction that the
respondent-mother, 14
before taking the child to Australia, must
file an undertaking to the satisfaction of the Court of Additional District
Judge-01, (West), Delhi within a period of four weeks from date. No order as to
costs.
.......................J.
(G.S.SINGHVI)
.......................J.
(ASOK
KUMAR GANGULY)
New
Delhi
