CIVIL APPEAL NO.2704 OF 2010
        (Arising out of SLP(C) No.19935/2009)

Vikram Vir Vohra                                ..Appellant(s)


Shalini Bhalla                                  ..Respondent(s)

                       J U D G M E N T


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

    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

    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

     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

5.   Thereafter     the       respondent-wife    filed

     applications dated 07.11.06 and 9.05.08 and the

    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

    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

   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


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

   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


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


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

     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

     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

     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


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

     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


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".

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

  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.

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,

   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.


                            (ASOK KUMAR GANGULY)

New Delhi
March 25, 2010


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