REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) Nos. 35468-35469 OF 2009

Gaytri Bajaj     .... Petitioner (s)

Versus

Jiten Bhalla                  .... Respondent(s)

O R D E R   

1) The  petitioner-wife  and  the  respondent-husband  were  

married on 10.12.1992 and two daughters were born out of  

the said wedlock.  The elder daughter was born on 20.08.1995  

and the younger daughter on 19.04.2000.  It is the grievance  

of  the  petitioner-wife  that  the  Additional  District  Judge  by  

order dated 03.06.2003 passed a decree of divorce within eight  

days from the  presentation of  the  first  and second Motions  

under  Section  13-B(1)  of  the  Hindu  Marriage  Act,  1955  

(hereinafter referred to as “the Act”).  The petitioner-wife has  

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filed a suit for declaration on 01.02.2006 seeking a declaratory  

decree that the respondent has obtained a decree by fraud.

2) On 10.10.2007, the respondent-husband filed an appeal  

under Section 28 of the Act in the High Court of Delhi at New  

Delhi.   The  petitioner-wife  filed  cross-objections  to  the  said  

appeal on 07.11.2007.  The learned single Judge of the High  

Court, by order dated 08.09.2008, allowed the appeal filed by  

the respondent-husband without deciding and adjudicating on  

the  cross-objections  filed  by  the  petitioner-wife.   Being  

aggrieved  by  the  order  of  the  learned  single  Judge,  the  

respondent-wife  filed  a  review petition  on 13.10.2008.   The  

said review petition was also dismissed on 10.07.2009 by the  

learned single Judge of the High Court.  Both the said orders  

were impugned in the present special leave petitions.

3) By order dated 14.12.2009, this Court issued notice to  

the respondent-husband.

4) The short question which falls for consideration in these  

SLPs for the present is with regard to the custody of the two  

children.

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5) During the course of hearing, at one stage, considering  

the issue raised, namely, relating to the custody of children,  

both being daughters, at the request of counsel for both sides,  

we  decided  to  interact  with  the  children  as  well  as  their  

parents,  namely,  petitioner-wife  and respondent-husband in  

our Chambers to find out the actual friction in order to arrive  

at the possibility of any amicable settlement.  Pursuant to the  

same, both parties including their children were present before  

us and a detailed interaction was held with the children and  

their parents separately.  In the course of interaction, we were  

able to ascertain the following facts:

a) The  date  of  birth  of  first  daughter  is  20.08.1995  and  

presently she is aged about 17 years.   The date of  birth of  

second  daughter  is  19.04.2000  and  presently  she  is  aged  

about 11 years.  Both of them were living with their father and  

are in his custody and the petitioner-wife had no access to the  

children or even a brief meeting with them.

b) After interacting with the children separately and putting  

several questions about their age, education, their future and  

importance  of  company of  mother  as of  now,  both of  them  

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were very clear and firm that they want to continue to live with  

their father and they do not want to go with their mother.   

6) In the aforesaid facts and circumstances, we feel that if  

the  children  are  forcibly  taken  away  from  the  father  and  

handed over to the  mother,  undoubtedly,  it  will  affect  their  

mental condition and it will not be desirable in the interest of  

their betterment and studies.  In such a situation, the better  

course would be that the mother should first  be allowed to  

make   initial   contact   with   the   children,  build  up  

relationship with them and gradually restore her position as  

their mother.

7) In a matter relating to the custody of children the first  

and the paramount consideration is the welfare and interest of  

the child and not the rights of the parents under a statute.  

Even the statues, namely, the Guardianship and Wards Act,  

1890 and Hindu Minority and Guardianship Act, 1956 make it  

clear  that  the  welfare  of  the  child  is  a  predominant  

consideration.  In a matter of this nature, particularly, when  

father and mother fighting their case without reference to the  

welfare of the child, a heavy duty is cast upon the Court to  

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exercise its discretion judiciously bearing in mind the welfare  

of the child as paramount consideration.

8) In the relevant facts and circumstances of the case, we  

are convinced that the interest and welfare of the children will  

be best  served if  they continue to be in the  custody of  the  

father.  In our opinion, at present, it is not desirable to disturb  

the custody with the father.   However,  we feel  that ends of  

justice  would  be  met  by  providing  visitation  rights  to  the  

mother.  In fact, during the hearing on 12.12.2011, Ms. Indu  

Malhotra,  learned  senior  counsel  for  the  petitioner-wife  

represented that if such visitation rights, namely, visiting her  

children once in a fortnight is ordered that would satisfy the  

petitioner-wife.  Learned senior counsel also represented that  

if the said method materializes, the petitioner-wife is willing to  

withdraw  all  civil  and  criminal  cases  filed  against  the  

respondent-husband which are pending in various courts.   

9) Mr.  Ranjit  Kumar,  learned  senior  counsel  for  the  

respondent-husband made it clear that this Court is free to  

pass appropriate interim arrangement if the same is feasible  

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and in the interest of the children. Since both are residing at  

Delhi,  it  is  desirable  to  pass  appropriate  direction  for  the  

meeting  of  the  petitioner-wife  either  in  the  house  of  the  

respondent-husband  or  in  a  common  place  like  Mediation  

Centre of this Court or the High Court.  

10) We, accordingly, make 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 Centre at 10 a.m. on Saturday  

of  every  fortnight  and  hand  over  both  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.

(ii) The  respondent-husbad  is  directed  to  inform  the  

mobile  number  of  elder  daughter  (in  the  course  of  

hearing,  we were informed that she is  having separate  

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mobile  phone)  and also landline number to enable the  

petitioner-wife to interact with the children.

11) Inasmuch as the petitioner-wife is willing to withdraw all  

civil  and criminal  proceedings  filed  against  the  respondent-

husband, in view of the interim visitation rights being granted  

to her, we hope and trust that the respondent-husband will  

cooperate and persuade the children to spend time with their  

mother as directed above.   

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12) It  is  also  made  clear  that  for  any  reason  if  the  said  

visitation is  not  workable  due to  the  attitude  of  any of  the  

parties or due to the children, counsel appearing for them are  

free to mention before this Court for the next course of action.

13) Put up on 03.02.2012.    

...…………….…………………………J.          (P. SATHASIVAM)                                  

.……....…………………………………J.   (J. CHELAMESWAR)  

NEW DELHI; DECEMBER 16, 2011.

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