EVEN AFTER PASSING DECREE OF DIVORCE COURT CAN PASS ORDERS IN OTHER MATTERS

 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

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