REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 10771 of 2018 [Arising out of SLP(C) No.21786/2018]

DR. AMIT KUMAR                        ….APPELLANT

versus

DR. SONILA & ORS. ….RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The  appellant  and  respondent  No.1  were  married  according  to

Hindu  rites  on  7.5.2004  and,  from  the  wedlock  were  born  a  son

(respondent No.2) and a daughter (respondent No.3), who are now about

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11 years and 8 years respectively.  It appears that the marriage ran into

problem at some stage and all endeavours for reconciliation failed.  The

appellant  and respondent  No.1,  both,  are  qualified  doctors,  who were

deployed with the CRPF throughout, which position exists even today.

3. The appellant and respondent No.1 ultimately agreed for a decree

of divorce by mutual consent and filed a petition under Section 13B of

the Hindu Marriage Act, 1955.  The first motion was filed in June, 2016

and after the expiry of the statutory period of six (6) months, the second

motion was passed and a decree of divorce was granted on 9.12.2016.

4. The two relevant terms of the decree of divorce for the purposes of

this present appeal are extracted as under: “5) That, petitioner No.1 and 2 are at liberty to marry with any other person of their choice.  In future petitioner No.1 has no any right  of  husband over  petitioner No.2,  so also petitioner No.2 has lost right as wife over petitioner No.1 today.

6) That, petitioner No.1 and 2 both are agree to custody of both the children’s residing with petitioner No.1.   Petitioner No.1 will  provide  education,  medicines,  and  marriage  of  Aarokya Kumar  s/o  Amit  Kumar.   Petitioner  No.2  will  provide education,  medicines  and marriage  of  Riya  Kumar  d/o Amit Kumar.”

5. A perusal of the aforesaid shows that para 5 was a natural corollary

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to the decree of divorce, i.e., that either parties could re-marry.  Clause 6

provides for an agreement inter se the appellant and respondent No.1 qua

the issue of custody of both the children, which was agreed to be with the

appellant.  However, possibly in view of their similar financial strength,

it was agreed that the appellant would provide for education, medicines

and marriage of the son while respondent No.1 would do the likewise for

the daughter.

6. The parties at the relevant time were posted in Nanded and, thus,

initially  the  arrangement  for  custody  worked  out  fine.   The  issue,

however, arose once the appellant was transferred out of Nanded.  The

appellant was transferred to Jammu, which apparently necessitated him

to  make  arrangements  for  admission  of  respondent  Nos.2  &  3  to  a

boarding school in Pune, while he assessed the possibility of bringing the

children to live with him in Jammu.  The undisputed fact is that at no

point  of  time  did  respondent  No.1  make   any  financial  contributions

towards  her  obligations,  in  terms of  the decree  of  divorce by mutual

consent.  The appellant sent a legal notice dated 28.3.2017 to respondent

No.1  pointing  out  this  fact  and  demanding  the  payment  of  unpaid

amounts,  apart  from the  amount  required  for  securing  admission  and

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meeting the living expenses of the daughter in the boarding school at

Pune.  It is this demand which seems to have triggered off the present

dispute.

7. Respondent No.1 sent a reply to the aforesaid notice through her

counsel on 15.4.2017.  The said reply raised the issue that the consent

decree was not acceptable to her, and hence her counsel had advised her

to seek a modification of the terms & conditions of the decree regarding

the  custody  of  the  children.   It  was  also  alleged  that  the  transfer  of

respondent Nos.2 & 3 to the boarding school was a unilateral act of the

appellant and that the expenses quoted were exorbitant.

8. Respondent  No.1  filed  an  application  dated  31.5.2017  under

Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking

custody  of  her  minor  children.   In  the  application,  it  is  alleged  that

respondent  No.1  was  mentally  disturbed  regarding  the  future  of

respondent Nos.2 & 3, who are of a tender age, and that at the time of the

divorce, the appellant forced and coerced the applicant “to dance on his

tunes though not acceptable to the applicant.”  It is further pleaded that

respondent No.1 had not asked for absolute custody of the children only

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so that they do not get disturbed in their education.  This application also

admits that the trigger has been the notice dated 28.3.2017, sent by the

appellant through his counsel, whereby respondent No.1 was for the first

time informed that the  children were being put in a boarding school.  A

reference has also been made to the communication, where it was alleged

by the appellant that the respondent No.1 wanted to get rid of the custody

and responsibility  of  the children and that  is  the reason why she had

given their custody to the appellant as respondent No.1 had decided to

get re-married.  There are certain other allegations made qua the problem

of the visiting rights of respondent No.1 vis-a-vis the appellant but they

are not germane to the controversy in question.

9. The aforesaid application was resisted by the appellant by filing a

reply where it was sought to be emphasised that the terms of the decree

had been agreed upon, six months’ time period had been granted to  the

parties to have a thought over the same, and only thereafter had they been

incorporated  in  the  decree  of  divorce.   In  the  reply  it  has  also  been

pointed  out  that  though  the  marriage  between  the  appellant  and

respondent  No.1  was  a  love  marriage,  issues  arose  on account  of  an

alleged  affair  between  respondent  No.1  and  her  school  boyfriend,  as

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named in the reply.  It was also alleged that she was caught red-handed,

but on her begging forgiveness,  the appellant  decided to maintain the

relationship.  This, however, it is alleged, did not bring the liaison to an

end.  Not only this, in March 2016, she is alleged to have started an affair

with a person working in the same organisation, who has been named in

the  application,  and  that  on  being  found  out,  respondent  No.1  even

attempted to commit suicide on that account, for which medical records

are available.  The divorce is stated to have been agreed upon without

making these allegations against respondent No.1, in order to maintain

the  dignity  of  the  parties  in  the  society  at  large.   The  District  Judge

disposed of the application on 04.09.2017.  The court noticed that the

paramount consideration was the interest of the children.  The court took

into consideration that both the parties were well qualified and enjoyed

an equal occupation and status, and had mutually agreed to the terms and

conditions of the decree for divorce after the completion of  the statutory

period of six months.  There was, thus, no reason to deprive the appellant

of the custody of the children, but visiting right arrangements were made

in view of the fact that the two parties were based in different stations.

10. This order was assailed by respondent No.1 before the High Court

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in WP No.12432/2017 in September, 2017.  While the writ petition was

still pending, respondent No.1 filed a civil suit for declaration that the

decree of  divorce by mutual  consent passed by the Family Court  had

been obtained by coercion, fraud and misrepresentation and was, thus,

null and void, and hence did not affect the marriage between the parties.

This suit is stated to be still pending.

11. During the proceedings,  mediation was also endeavoured,  but  it

failed.  The learned Single Judge of the Bombay High Court passed an

order  on  12.6.2018,  after  having  interacted  with  the  children.   The

learned Judge took note of the subsequent development that the appellant

had married recently, prior to the order, and that there was a biological

son of his second wife, borne out of her first wedlock, who is residing

with them, currently.  The appellant had also got the children admitted to

a  school  in  Jammu,  by  that  point  in  time.   The  interaction  with  the

children is stated to have led the Judge to the conclusion that the son and

daughter desire to live with respondent No.1, but that they also love their

father  equally.   The  learned  Judge  gave  preference  to  the  desire  of

respondent  No.1,  as  a  mother,  and  directed  that  the  children  would

remain in the custody of  the mother for  a period of  one year to take

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education at a school in which they would acquire admission, at the place

where their mother lives and that the father would have visiting rights.  A

number of directions were passed qua the implementation of the visiting

rights.

12. The  appellant,  aggrieved  by  this  order,  preferred  SLP  (Civil)

No.16667/2018.  Leave was granted and this appeal No.6500/2018 was

disposed of on 11.7.2018, by making a reference to the clauses in the

consent decree, which had not been noticed by the High Court, while

passing the order.  The matter was then remitted to the High Court for

fresh consideration.

13. Based  on  the  interaction  with  the  children,  the  learned  Single

Judge  of  the  Bombay  High  Court  by  the  impugned  order  dated

25.7.2018, once again, directed the custody of the children to be with the

mother, with visiting rights given to the father.  The High Court after

noticing  the  submission  made  on  behalf  of  the  appellant  that  the

condition in the divorce decree had not been varied till date, posted the

matter on 19.3.2019, to be reviewed after a year.

14. We had directed the personal  presence of  the appellant  and the

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respondents with whom we interacted.  Learned counsel for the appellant

drew  our  attention  to  certain  pleadings  which  would  show  that

proceedings had been initiated against the officer with whom the liaison

of  respondent  No.1  was  alleged.   The Memorandum dated  14.3.2017

issued by the Directorate General, CRPF referred to the imputations of

misconduct  in  support  of  the  article  of  charges and  it  is  specifically

alleged that the said officer had used immoral texts during office hours

while communicating with respondent  No.1.   The details of  the same

have also been set out.  The inquiry is stated to be still pending.  In the

course of the Court’s interaction, it came to light that as per the appellant

and  his  second  wife,  the  matrimonial  arrangement  was  with  the

understanding  that  Respondent  Nos.2  and  3  would  stay  with  the

appellant, and the second wife of the appellant would take care of them.

The second wife of the appellant is an MBA graduate and was previously

working  with  a  bank,  but  resigned  to  take  care  of  domestic

responsibilities.  The appellant also stated that while on the one hand no

financial aid had been given by respondent No.1 to the appellant for the

daughter, as per the obligations in the consent decree on other hand she

had been transferring substantive amounts to the person with whom she

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allegedly had a liaison.  On the Court’s query, respondent No.1 initially

took offence to the fact that the appellant had access to her bank details,

but on a pointed query admitted that she did transfer the funds to her

colleague, but stated that the same was her own business.  She sought to

plead that it was immaterial whether she was or was not a good wife, but

that  she  was   indeed  a  good mother,  as  had  become apparent  in  the

interaction of the children with the learned Single Judge.

15. We have given deep thought to the matter.  The issue is not so

simple as it involves the interests of these young children, respondent

Nos.2 & 3, which is of paramount concern.  While saying so, it has been

kept  in  mind  that  these  children  are  still  young  and  are  of  an

impressionable age and the interaction can only be one of the factors to

be taken into account.

16. In our view, it clearly emerges that the decision to give custody to

the appellant, of the two children, was a conscious decision taken by the

parties at the relevant stage and can hardly be categorised as a decision

under force, pressure or fraud.  Respondent No.1 is well-educated and is

a medical practitioner.  There was a six (6) months’ hiatus period for the

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parties to think over the terms of the settlement before the grant of the

decree of divorce, which is the statutory period available for the parties

to have a re-think, if they so deem it appropriate.  The parties had clearly

agreed as per clause 5 that they were free to re-marry.  As per the terms

of the custody, the said marriage does not have any effect on the custody

rights, at least in the terms between the parties.  The appellant has also

borne all  the expenses for both the children, as respondent No.1 even

initially  failed  to  contribute  anything  towards  the  expenses  for  the

daughter, contrary to the agreement inter se the parties.

17. The trigger for respondent No.1 claiming custody of the children

only arose when the appellant asked her to contribute financially.  It was

not  a  case  of  financial  difficulty,  but  the  unwillingness  of  respondent

No.1  to  contribute  for  her  own  daughter,  while  simultaneously

transferring  amounts  to  a  colleague  of  hers.   It  does  appear  that  the

proceedings initiated initially for the custody and thereafter for seeking

cancellation  of  the  decree  of  divorce  were  clearly  an  endeavour  to

pressurise the appellant to not claim any amounts.  We may also invite

attention  to  Order  II  Rule  2  of  the  Code  of  Civil  Procedure,  1908

specifying that where a plaintiff intentionally relinquishes, any portion of

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his  claim,  he  shall  not  afterwards  sue  in  respect  of  the  portion  so

relinquished.   Respondent  No.1  had  relinquished  her  rights  to  claim

custody and the suit filed by her, thus, is also highly doubtful.

18. We may hasten to add that it is not as if there can be no eventuality

where such terms may require modification, but that would arise if the

interests of the children so desire, and more specifically if the appellant

had failed to honour his commitments, or look after the children.  The

second marriage of the appellant cannot be put against him, nor can the

factum of the child of his second wife residing with him deprive him of

the  custody  rights  of  his  two  children,  which  has  been  specifically

conferred on him with the consent of respondent No.1.

19. A perusal  of  the  impugned order  shows that  it  is  not  as  if  the

appellant  was  not  looking  after  the  children.   The  children  showed

affection for their father.  It was due to the exigencies of the appellant’s

service condition that the children had to be put in a boarding school for

some time,  which  exigency  also  does  not  remain  at  present.   It  was

known to the parties that they were in a transferable job.  A conscious

decision  was  taken  by  the  parties  to  give  the  sole  custody  to  the

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appellant, in the interest of the children.  The second wife of the appellant

is an educated lady.   Merely because the appellant  has decided to go

ahead  in  life,  and  has  had  a  second  marriage,  it  provides  no ground

whatsoever to deprive him of the custody of the children as agreed upon

between the appellant and respondent No.1, especially when he has been

looking  after  the  children  and  has  not  gone  back  on  any  of  his

commitments.  Respondent No.1, in order to avoid the financial liability

started  these  proceedings,  resulting  in  the  impugned  order,  as  also  a

separate  suit  proceeding.   One  fails  to  appreciate  what  is  it  that

respondent No.1 wants by filing the suit now, by claiming that the decree

of divorce is null and void, when there is admission of a mutual consent

for divorce and the appellant has already re-married.  We are not going

into the details of the allegations against respondent No.1’s liaison with

another man in the same service, as the inquiry is still pending and, it

may not be appropriate also, to do so in the present proceedings.  We,

however,  see  no reason  why the  appellant  has  been  compelled  to  go

through this  unnecessary  litigation  when the  parties,  at  the  threshold,

after deep deliberation, and for the interest of the children, have given the

custody to the appellant.

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20. We are of the view that the learned Single Judge has given undue

importance to the conversation with the children at a time when naturally

they would prefer to stay with a parent rather than a boarding school.

Respondent No.1 cannot be permitted to take advantage of the visiting

rights  granted  for  the  vacation  period to now claim that  the  children

should continue to stay with her.  

21. We are, thus, of the unequivocal view that the interference by the

learned  Single  Judge,  vide  impugned  order  dated  25.7.2018,  was

unjustified, and the order of the Family Court dated 9.12.2016 was in

order.

22. Insofar  as  any  further  facilitative  directions,  for  the  purpose  of

visiting rights of respondent No.1 are concerned, it would be open for the

Family  Court  or  High  Court  to  make  necessary  arrangements.

Respondent Nos.2 & 3 should be returned to the appellant by respondent

No.1, along with all relevant documents of the children, within thirty (30)

days from today, before the Family Court.  In case the appellant is unable

to make arrangement for a mid-term admission for the children, he may

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inform respondent No.1 and in that eventuality the children will continue

to  study  in  the  same  school  at  present  and  continue  to  stay  with

respondent No.1 till the end of the session.  This is in order to ensure that

the study of the children are not disturbed.  We also make it clear that the

rights and obligations as envisaged in the decree of divorce by mutual

consent will bind both the appellant and respondent No.1.  Needless to

say that after the children attain the age of majority, they would have

their own choice.

23. The appeal is accordingly allowed, leaving the parties to bear their

own costs.

..….….…………………….J. [Kurian Joseph]

              ...……………………………J. [Sanjay Kishan Kaul]

New Delhi. October 26, 2018.

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