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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A. No. 4 OF 2016

IN

SPECIAL LEAVE PETITION (CIVIL) No. 4754 OF 2014  

HARSHITA BHASIN               ..... PETITIONER   

Versus  

STATE OF WEST BENGAL & ORS     .....  RESPONDENT       

O R D E R

Dr D Y CHANDRACHUD, J

The applicant, Mukul Bhasin, was impleaded as the fifth respondent to a

petition under Article 136 of the Constitution which was disposed of by this Court

on 9 April 2014.  The first respondent to the application was the petitioner in the

Special Leave Petition.  The applicant and the first respondent were married on

11 July 2007.  They have two children – Ranvir, who was born on 24 July 2008

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and Hridaan, born on 16 November 2011.  The children are now eight and five

years old.  There is a matrimonial dispute and parties have been living separately

since July 2013.   

2 The applicant instituted a petition under the Guardian and Wards Act, 1890

(Petition 754 of 2013) before the Civil  Judge (Senior Division),  Gautam Budh

Nagar, UP, for  dissolution  of  marriage  and  for  custody  of  the  children.   The

respondent instituted a habeas corpus petition before the Calcutta High Court to

which the applicant filed an affidavit-in-opposition.   An order was passed by the

Calcutta High Court refusing interim custody to the respondent.  The High Court,

however, directed the applicant  to  bring the children on a fortnightly  basis  to

Kolkata on a Sunday and to allow the respondent to meet them between 11 am

and 4 pm at the residence of the respondent’s advocate.  This led to the Special

Leave Petition by the respondent challenging the order refusing interim custody

to her.   

3 During the course of the hearing of the Special Leave Petition this Court

recorded  by  its  order  dated  13  March  2014  that  it  had  interviewed  both  the

parties  and  the  minor  children  to  explore  the  possibility  of  an  amicable

settlement. By way of a temporary arrangement, interim custody of the children

was granted to the respondent for the duration of the ensuing school vacation

until the reopening of the school of the elder child, after which the children were

to  be  restored  to  the  father.  Eventually, on  9  April  2014 the  Special  Leave

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Petition was disposed of since the order of the High Court impugned was purely

an interim arrangement which did not finally determine the rights and obligations

of the parties.  However, the Court which is seized of the Guardianship Petition

was requested to expedite its proceedings and to pass final orders, as far as

possible,  within  three  months.   The  interim  arrangement  regarding  visitation

rights made by the High Court was directed to continue.

4 The applicant moved the court before which the guardianship proceedings

are  pending  in  January  2016  for  modification  of  the  visitation  orders  on  the

allegation that the respondent was misusing her visitation rights.  The trial court

dismissed the application on the ground that this would amount to interference

with the interim order of custody and visitation passed by the High Court and

confirmed by this Court.

5 The basis of the present application is set out in paragraphs 9, 10 and 11

which reads as follows:

“That  the  minor  children  to  comply  with  the present  visitation  arrangement  leave  their home at Noida at 3:30 am to reach the airport in  time to  catch  a  flight  to  reach Kolkata  on time  for  the  visitation.   The  minor  children further  return  to  Delhi  after  the  visitation between 10:30  pm and  1:00  am on  Monday morning and  have to  wake up for  school  by 6:15 am on the same day.  On one occasion the  flight  of  the  minor  children  had  to  be diverted  to  Lucknow  and  the  children  only reached  Delhi  by  3:14  am.   The  present

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arrangement  is  not  conducive  for  the  minor children keeping in mind their tender age and their mental and physical well-being.

That  the  present  Applicant/Respondent  No.5 fears that the strenuous and constant travelling from Delhi  to Kolkata and back on a regular basis  shall  have  a  negative  impact  on  their physical health along with the mental psyche of the children and may even in the future begin to  affect  the  academics,  extra-curricular activities,  sports  and  attendance  of  the children.   That  the  present Applicant/Respondent  No.5  humbly  submits that  the  present  visitation  arrangement  is  no longer in the best interest  and welfare of  the children.

That it is due to these reasons that the present Applicant/Respondent  No.5  is  seeking modification  of  the  order  dated  09.04.2014 passed by this Hon’ble Court only to the limited extent of changing the venue of the visits from Kolkata to Delhi.   After due consideration the present  Applicant/Respondent  No.5  humbly states  that  he  is  even  willing  to  bear  the Petitioner’s cost of travel to Delhi to meet the minor children every fortnightly Sunday so as to  let  the  petitioner  interact  with  them.   It  is further  submitted  that  the  Petitioner  has relatives and family members who live in Delhi and shall not be adversely affected in anyway by  travelling  to  Delhi  to  meet  with  the  minor children  and  comply  with  the  fortnightly visitation arrangement”.  

6 The learned counsel appearing on behalf of the applicant submits that it is

extremely  stressful  for  the  children  to  travel  to  Kolkata  every  fortnight  on  a

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Sunday since they have to leave their home at NOIDA at 3.30 am in order to take

a flight to meet their mother at 10 am.  Moreover, it has been submitted that the

children return back to New Delhi  late at  night and have to attend school  on

Monday morning.  The applicant has expressed his readiness and willingness to

bear the cost of travel of the respondent to Delhi where, it has been submitted,

the children can meet  her during the hours fixed by the High Court.   Having

regard to the fact that prima facie it appears tiring and stressful for the two young

children who are eight and five years of age to travel to Kolkata in the manner

agreed, we had requested learned counsel for the parties to discuss the matter

and indicate to the Court whether an agreement can be broadly arrived at  to

facilitate the convenience of the young children while at the same time protecting

the legitimate concerns of their mother.   

7 Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the

respondent has fairly stated before the Court that while the respondent would  be

willing  to  abide  by  any  reasonable  arrangement  which  would  obviate

inconvenience to her children, this Court may require the petitioner to provide for

the airfare both for the respondent and her mother to travel to New Delhi and the

petitioner may be directed to make arrangements to facilitate their stay in a room

in a hotel in New Delhi for two nights.  During the course of the hearing we had

indicated a viable arrangement by which instead of being required to travel to

Kolkata every fortnight, the children shall travel once in a month to Kolkata while

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the respondent will meet the children in New Delhi once in a month.  Both the

learned counsel have fairly agreed to the suggestion.

8 In view of the above position, we issue the following directions:- i) Pending  the  hearing  and  final  disposal  of  the  guardianship

proceedings, the respondent shall be entitled to visitation rights and

to meet her two minor children, Ranvir and Hridaan in the following

manner : (i) The applicant father shall travel with the children to Kolkata,

on a Sunday, in  the first  fortnight  of  every  month so as to

enable  the  respondent  mother  to  meet  the  children  in  the

manner  indicated  in  the  order  of  the  High  Court  dated  8

October 2013; (ii) The respondent shall in the second fortnight of every month

be  entitled  to  visitation  rights  at  New Delhi  in  the  manner

indicated in the order of the High Court dated 8 October 2013.

To facilitate disbursement of the travel and hotel expenses of

the respondent and her mother, the applicant shall by means

of an electronic transfer of funds deposit a sum of rupees forty

thousand per  month  into  a  nominated bank  account  of  the

respondent  by  the  seventh  day  of  every  month.  The

respondent shall make her own arrangements for travel to and

fro from New Delhi and for stay. The respondent shall fetch

the children from the chambers of Ms Udita Seth, Advocate

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(Chamber  No.20A,  R.K.  Garg  Block,  Supreme  Court,

Bhagwan Das Road, New Delhi) and return the children to the

father at the same place.  The period of visitation shall be as

prescribed in  the  order  of  the  High  Court  dated  8  October

2013.

9 The  order  of  the  High  Court  dated  8  October  2013  shall  in  the

circumstances stand modified by consent to the above extent.

10 The Interlocutory Application is accordingly disposed of.

            ........................................CJI

                             [T S  THAKUR]   

      ...........................................J  

         [Dr D Y  CHANDRACHUD]

..........................................J                    [L NAGESWARA RAO]  

New Delhi December 14, 2016