GAYTRI BAJAJ Vs JITEN BHALLA
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: C.A. No.-007232-007233 / 2012
Diary number: 31452 / 2009
Advocates: ARUN K. SINHA Vs
SUNIL KUMAR JAIN
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 7232-7233 of 2012 (Arising out of SLP (Civil) 35468-69 of 2009)
Gaytri Bajaj … Appellant
Versus
Jiten Bhalla … Respondent
J U D G M E N T
RANJAN GOGOI, J.
Leave granted.
2. These appeals are directed against the judgment and order dated
08.09.2008 passed by the High Court of Delhi in Matrimonial Appeal No.
72/2007 and the order dated 10.7.2009 declining review of the aforesaid
order dated 08.09.2008.
Page 2
3. The facts lies in a short compass and may be usefully recapitulated at
this stage.
The appellant (wife) and the respondent (husband) were married on
10.12.1992. Two daughters, Kirti and Ridhi, were born to them on 20.8.1995
and 19.4.2000 respectively. Disputes and differences having developed
between the parties a joint petition dated 23.05.2003 was presented by the
parties under Section 13 B of the Hindu Marriage Act (hereinafter referred
to as ‘the Act’) seeking a decree of divorce by mutual consent. In the joint
petition filed, it was stated by both the parties that they have been living
separately since December, 2001, due to irreconcilable differences and in
view of their separate residence and lack of any co-habitation as husband
and wife, the parties, upon failure to effect any reconciliation of their
differences, have agreed to dissolve their marriage by mutual consent under
the provisions of section 13B of the Hindu Marriage Act.
4. It appears that without waiting for the period prescribed under Section
13B (2) of the Act, a second Motion was moved by the parties before the
learned Court on 26.05.2003 seeking divorce by mutual consent. By order
dated 3.6.2003 the learned trial court, after recording its satisfaction in the
matter, granted a decree of divorce under the aforesaid provision of the Act.
It may be specifically noticed, at this stage, that in the joint petition filed
2
Page 3
before the learned trial court it was specifically stated that, under the terms
of the agreement between the parties, the respondent-husband was to have
sole custody of the two minor daughters and the appellant-wife had agreed
to forego her rights of visitation keeping in view the best interest and welfare
of the children.
5. After the expiry of a period of almost three years from the date of
decree of the divorce granted by the learned trial court, the appellant-wife
instituted a suit seeking a declaration that the decree of divorce dated
3.6.2003 is null and void on the ground that her consent was obtained by
acts of fraud and deceit committed by the respondent – husband. A further
declaration that the marriage between the parties is subsisting and for a
decree of perpetual injunction restraining the husband from marrying again
was also prayed for in the suit. The respondent-husband filed written
statement in the suit denying the statements made and contesting the
challenge to the decree of divorce. While the aforesaid suit was pending, the
appellant-wife filed an application under Section 151 of the Code of Civil
Procedure to recall/set aside the judgment and decree dated 03.06.2003
passed in the divorce proceeding between the parties. The aforesaid
application under section 151 of the Code was filed despite the institution of
the separate suit seeking the same/similar reliefs. On the basis of the
3
Page 4
aforesaid application filed by the appellant-wife the learned trial court by
order dated 25.09.2007 recalled the decree of divorce dated 3.6.2003.
Aggrieved, an appeal i.e. Matrimonial appeal No. 72/2007, was filed by the
respondent-husband in the High Court of Delhi which was allowed by the
order dated 08.09.2008. The application seeking review of the aforesaid
order dated 08.09.2008 was dismissed by the High Court on 10.07.2009.
Both the aforesaid orders dated 08.09.2008 and 10.07.2009 have been
assailed before us in the present appeals.
6. In so far as the validity of the decree of divorce dated 03.06.2003 is
concerned we do not propose and also do not consider it necessary to go into
the merits of the said decree inasmuch as the High Court, while setting aside
the order of the learned trial court dated 25.09.2007 recalling the decree of
divorce, had clearly observed that it is open for the appellant-wife to
establish the challenge to the said decree made in the suit already instituted
by her. Thus, while taking the view that the order of the learned trial court
dated 25.09.2007 recalling the decree of divorce was not correct, the High
Court had left the question of validity of the decree, on ground of alleged
fraud, open for adjudication in the suit.
4
Page 5
7. Apart from the above, the parties before us have agitated only the
question with regard to the custody of the children and if such custody is to
remain with the husband the visitation rights, if any, that should be granted
to the appellant-wife. As the above is only issue raised before us by the
parties we propose to deal only with the same and refrain from entering into
any other question.
8. We have already noticed that in the joint petition filed by the parties
seeking a decree of divorce by mutual consent it was clearly and
categorically stated that the husband would have custody of the children and
the wife will not insist on any visitation rights. It was also stated that the
wife had agreed to do so in the interest and welfare of the children.
9. The above issue, i.e. custody of the children has already received an
elaborate consideration of this Court. Such consideration is recorded in the
earlier order of this court dated 16.12.2011. From the aforesaid order, it
appears that proceeding on the basis of the statement made by Ms. Indu
Malhotra, learned senior counsel for the appellant – wife that if the issue of
visitation rights of the wife is considered by the court, she would not urge
any other contention, this court had made an endeavour to explore the
possibility of an amicable settlement of the dispute between the parties on
5
Page 6
the said score. After interacting with both the children this court in its order
dated 16.12.2011 had recorded that the two children, who are aged about 17
and 11 years, were very clear and categorical that they wanted to “continue
to live with their father and they do not want to go with their mother”. This
Court, therefore, was of the view that taking away the custody of the
children from the father will not be desirable. In fact such a step would be
adverse to the best interest of the children. However, keeping in mind the
position of the appellant as the mother it was decided that the mother should
be allowed to make an initial contact with the children and gradually built up
a relationship, if possible, so as to arrive at a satisfactory solution to the
impasse. Accordingly, the Court made the following interim arrangement:
“(i) The respondent-husband is directed to bring both
daughters, namely, Kirti Bhalla and Ridhi Bhalla to the
Supreme Court Mediation Center at 10 a.m. on Saturday of
every fortnight and hand over bo`th of them to the petitioner-
wife. The mother is free to interact with them and take them out
and keep them in her house for overnight stay. On the next day,
i.e. Sunday at 10 a.m. the petitioner-wife is directed to hand
over the children at the residence of the respondent-husband.
The above arrangement shall commence from 17.12.2011 and
continue till the end of January, 2012.
6
Page 7
(ii) The respondent-husband is directed to inform the mobile
number of elder daughter (in the course of hearing we were
informed that she is having separate mobile phone) and also
landline number to enable the petitioner-wife to interact with
the children.”
10. What happened thereafter has been stated in an application filed by
the respondent-husband before this Court (Interlocutory Application
No.4/2012) seeking vacation/modification of the interim arrangement made
by the order dated 16.12.2011. In the said application, it has been stated that
pursuant to the order dated 16.12.2011 the respondent-father along with both
the children had come to the Supreme Court Mediation Centre at about 10
a.m. on 17.12.2011. However, the children refused to go with their mother
and the appointed Mediator, inspite of all efforts, did not succeed in
persuading the children. At about 1.30 p.m. the respondent, who had left the
children in the Mediation Centre, received a call that he should come and
take the children back with him. In the aforesaid I.A. it has been further
stated that on 30.12.2011 when the children were due to visit the Mediation
Centre once again, both the children started behaving abnormally since the
morning and had even refused to take any food. After reaching the
Mediation Centre, the children once again refused to go with their mother
and the mediator had also failed to convince the children. Eventually, at
7
Page 8
about 12.00 p.m., the respondent took both the children home. Thereafter,
both the children have declined to visit the Mediation Centre any further.
Before the next date for appearance in the Mediation Centre, i.e., 14.01.2012
the said fact was informed to the learned counsel for the appellant by the
respondent through his counsel by letter dated 13.01.2012.
11. Though the above facts stated in the aforesaid I.A. are not mentioned
in the report of the Mediator submitted to this Court, what is stated in the
aforesaid report dated 14.01.2012 is that on 14.01.2012 the respondent and
the children were not present and that a letter dated 13.01.2012 from the
counsel for the respondent had been placed before the Mediator wherein it
has been stated that though the children had earlier attended the Mediation
Centre they are now refusing to come to the Centre and all efforts in this
regard made by their father have failed. It will also be significant to note that
the statements made in the I.A. have not been controverted by the appellant -
wife in any manner.
12. The law relating to custody of minors has received an exhaustive
consideration of this Court in a series of pronouncements. In Gaurav
Nagpal v. Sumedha Nagpal1 the principles of English and American law in
this regard were considered by this Court to hold that the legal position in 1 2009 (1) SCC 142
8
Page 9
India is not in any way different. Noticing the judgment of the Bombay High
Court in Saraswati Bai Shripad Ved v. Shripad Vasanji Ved2; Rosy Jacob
v. Jacob A Chakramakkal3 and Thirty Hoshie Dolikuka v. Hoshiam
Shavdaksha Dolikuka4 this Court eventually concluded in paragraph 50 and
51 that:
“50. That when the Court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousmi Moitra Ganguli’s case the court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.
51. The word “welfare” used in section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which governs the rights of the parents and guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.”
13. The views expressed in Para 19 and 20 of the report in Mousmi
Moitra Ganguli v. Jayant Ganguli5 would require special notice. In the said
case it has been held that it is the welfare and interest of the child and not the
rights of the parents which is the determining factor for deciding the
2 AIR 1941 (Bom.) 103 3 (1973) 1 SCC 840 4 (1982) 2 SCC 544 5 (2008) 7 SCC 673
9
Page 10
question of custody. It was the further view of this Court that the question of
welfare of the child has to be considered in the context of the facts of each
case and decided cases on the issue may not be appropriate to be considered
as binding precedents. Similar observations of this Court contained in para
30 of the Report in Sheila B. Das v. P.R. Sugasree6 would also require a
special mention.
14. From the above it follows that an order of custody of minor children
either under the provisions of The Guardians and Wards Act, 1890 or Hindu
Minority and Guardianship Act, 1956 is required to be made by the Court
treating the interest and welfare of the minor to be of paramount importance.
It is not the better right of the either parent that would require adjudication
while deciding their entitlement to custody. The desire of the child coupled
with the availability of a conducive and appropriate environment for proper
upbringing together with the ability and means of the concerned parent to
take care of the child are some of the relevant factors that have to be taken
into account by the Court while deciding the issue of custody of a minor.
What must be emphasized is that while all other factors are undoubtedly
relevant, it is the desire, interest and welfare of the minor which is the
6 (2006) 3 SCC 62
10
Page 11
crucial and ultimate consideration that must guide the determination required
to be made by the Court.
15. In the present case irrespective of the question whether the
abandonment of visitation rights by the wife was occasioned by the fraud or
deceit practiced on her, as subsequently claimed, an attempt was made by
this Court, even by means of a personal interaction with the children, to
bring the issue with regard to custody and visitation rights to a satisfactory
conclusion. From the materials on record, it is possible to conclude that the
children, one of whom is on the verge of attaining majority, do not want to
go with their mother. Both appear to be happy in the company of their father
who also appears to be in a position to look after them; provide them with
adequate educational facilities and also to maintain them in a proper and
congenial manner. The children having expressed their reluctance to go with
the mother, even for a short duration of time, we are left with no option but
to hold that any visitation right to the mother would be adverse to the
interest of the children. Besides, in view of the reluctance of the children to
even meet their mother, leave alone spending time with her, we do not see
how such an arrangement, i.e., visitation can be made possible by an order of
the court.
11
Page 12
16. Taking into account all the aforesaid facts, we dismiss these appeals,
affirm the impugned orders passed by the High Court of Delhi and deny any
visitation rights to the petitioner and further direct that the children would
continue to remain in the custody of their father until they attain the age of
majority.
……………………J. [P. SATHASIVAM]
……………………J. [RANJAN GOGOI]
New Delhi, October 05, 2012.
12