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 Nagpal
reported 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
March 25, 2010
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 Nagpal
reported 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
March 25, 2010
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