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