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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  No(s). 3409-3410  OF 2019 (Arising out of SLP(C) No(s).28166-28167 OF 2018)

NUTAN GAUTAM                                       Appellant(s)

                               VERSUS

PRAKASH GAUTAM                                     Respondent(s)

J U D G M E N T

R. Subhash Reddy, J.:

(1) Leave granted.

(2) These appeals are filed by the wife of the respondent

herein  aggrieved  by  orders  dated  21.05.2018  and  20.08.2018

passed by the High Court of Judicature at Allahabad in First

Appeal NO.316 of 2018.

(3) The  marriage  of  the  appellant-wife  and  the  respondent-

husband was solemnized in the year 2006.  In the year 2009 a

son was born to them who is named Krish alias Master Krishav

Gautam.  In the year 2012, respondent-husband filed a petition

for divorce under Section 13(1)(ia)(iii) of the Hindu Marriage

Act, 1955.  The said divorce petition is decreed ex-parte by

the Trial Court in favour of the respondent-husband.  The Trial

Court also directed that the son of the appellant, namely,

Krish alias Master Krishav Gautam, should be admitted in Col.

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Satsangi’s Kiran Memorial Public School, New Delhi.

(4) Aggrieved  by  the  ex-parte  order,  the  appellant  herein

filed First Appeal NO.316 of 2018 before the High Court of

Judicature  at  Allahabad.   Pursuant  to  order  of  the  Family

Court,  the  son  of  the  parties  has  been  admitted  in  Col.

Satsangi’s Kiran Memorial Public School, New Delhi, and he has

been put in a Boarding House of the School.  By way of an

interim  order  dated  21.05.2018,  which  is  impugned  in  these

appeals, the respondent-husband was permitted to take the boy

with him to Delhi and to leave him in the Boarding House till

the  start  of  the  summer  vacations  of  2018.   Further,  the

appellant-mother  was  permitted  to  take  the  child  in  summer

vacations and leave him in the School/Boarding House before the

reopening of the School.

(5) The Family Court has also awarded an amount of Rs.10,000/-

per month towards maintenance for the appellant-wife.  In view

of the plea of the respondent-husband that the appellant-wife

is entitled for maintenance only from one forum, appellant-wife

is  directed  to  elect  one  forum  to  which  she  wants  to  get

maintenance.

(6) After reopening of the School in the summer vacation, it

appears that the boy, Krish @ Master Krishav Gautam, was not

willing to go to study in the Boarding House in Col. Satsangi’s

Kiran  Memorial  Public  School,  New  Delhi.   Further,  fifteen

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days’ time was granted by the High Court to the appellant-

mother  vide  Order  dated  20.08.2018  to  comply  Order  dated

21.05.2018.

(7) We have heard Mr. Harikumar V., learned counsel appearing

for  the  appellant-wife,  and  Mr.  R.  Basant,  learned  senior

counsel appearing for the respondent-husband.

(8) It is contended by learned counsel for the appellant-wife

that the boy is not willing to study in the Col. Satsangi’s

Kiran Memorial Public School, New Delhi, as he is attached to

his mother very much and intends to study in his old school.

Accordingly, he was admitted in Global International School,

Shahjanpur, where he is comfortable with his studies.  It is

submitted  at  the  Bar  that  as  welfare  of  the  child  is  the

paramount consideration and he is good at studies by pursing

his study in Global International School also at Shahjanpur,

and requested to set aside the impugned order and permit the

boy to continue in the same school at Shahjanpur.

(9) On the other hand, Shri R. Basant, learned senior counsel

appearing for the respondent, has submitted that the respondent

is willing to join his son in the best school of Delhi by

paying more than Rs.2,00,000/- (Rupees Two Lakhs) towards fees

and it is in the interest and welfare of the child to allow him

to study only at Col. Satsangi’s Kiran Memorial Public School,

New Delhi.  Further, It is submitted that there was a specific

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direction for joining the boy in the Boarding House/School at

New  Delhi  after  reopening,  the  appellant-wife  has  violated

Order dated 21.05.2018 and further Order dated 20.08.2018.  It

is submitted that wish of the child itself is not a criteria

and the welfare of the child will be best served by admitting

him in Col. Satsangi’s Kiran Memorial Public School, New Delhi.

(10)  We have heard learned counsel on both the sides, perused

Orders  dated  21.05.2018  and  20.08.2018  and  other  materials

placed on record.

(11) It is clear from the materials placed on record, in view

of the differences cropped up between the parties, respondent-

husband has filed petition for divorce under Section 13(1)(ia)

(iii) of the Hindu Marriage Act, 1955, in the year 2012 which

is decreed ex-parte and appeal against that order is pending

before  the  High  Court.   The  appellant-wife  is  presently

residing at her parental house at Shahjanpur, Uttar Pradesh.

The boy is studying in Global International School, Shahjanpur,

Uttar Pradesh, while granting ex-parte decree it appears that

the Trial Court directed that their son should be admitted in

Col. Satsangi’s Kiran Memorial Public School, New Delhi.  In

view of such direction, it appears, the boy was admitted in the

said School at New Delhi and was allowed to be taken by the

appellant-wife in the summer vacation of 2018.

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(12) It is true that in Order dated 21.05.2018, the respondent

was permitted to take the son and get him joined at Boarding

House  in  Col.  Satsangi’s  Kiran  Memorial  Public  School,  New

Delhi, and the appellant-wife was permitted to take custody of

the boy in the summer vacation and to ensure that he returns to

the Boarding House after summer vacation.  It is the case of

the  appellant  that  after  summer  vacation  the  boy  was  not

inclined to go to the Boarding House/School and wanted to study

only in his old school, namely, Global International School,

Shahjanpur.  It is also not in dispute that the child was

earlier studying in the same school where he is admitted now

for further studies.  We are informed now that he has now

completed  3rd standard  and  is  aged  about  10  years.   It  is

natural, a boy of that age who has studied earlier in the

school at Shahjanpur, willing to continue in the same school as

much as he is acclimatised with the environment of such school

where he has started his studies from Ist standard onwards.

This Court also interacted with the boy and the boy expressed

his desire to continue his studies only in Shahjanpur school.

When the boy is not inclined to study in Col. Satsangi’s Kiran

Memorial Public School, New Delhi, and stay in the Boarding

House, we are of the view that in the interest of the welfare

of  the  child,  he  cannot  be  compelled  to  admit  in  Col.

Satsangi’s Kiran Memorial Public School, New Delhi, attached

with the Boarding House. In such view of the matter, it cannot

be  said  that  the  appellant-wife  has  violated  the  direction

issued  by  the  High  Court  vide  Orders  dated  21.05.2018  and

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20.08.2018.

(13) From the very perusal of the order impugned, it appears

that the High Court has ascertained the views of the boy and

has  recorded  that  he  is  very  much  attached  and  has  more

affiliation towards his mother (appellant herein). In that view

of the matter we are of the opinion that the child, namely,

Krish @ Master Krishav Gautam cannot be compelled to join in

Col.  Satsangi’s  Kiran  Memorial  Public  School  at  New  Delhi.

We are further of the view that in the interest and welfare of

of the child, Krish @ Master Krishav Gautam shall be allowed to

continue his study at Global International School, Shahjanpur.

(14)  Further, in the impugned order, the appellant-wife is

directed to elect one forum from which she wants to get the

maintenance.  As the same is also not in conformity with the

law, the said direction is liable to be set aside.  Ordered

accordingly.

(15)  As the respondent-husband is a natural father of the

child,  namely,  Krish  @  Master  Krishav  Gautam,  he  is  also

entitled  to  visitation  rights.   We  permit  the  respondent-

husband to visit his child and he is entitled to take the child

from the House of the appellant on any Sunday’s and public

holiday’s whenever he visits Shahjanpur.  The appellant-wife

shall allow the child to leave along with the respondent-father

at 09:00 a.m., and the respondent-husband to return the child

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at the house of the appellant-wife before 06:00 p.m. on the

same day.  For any further modification of visitation rights

respondent-father is at liberty to move the High Court with

appropriate application and the same shall be considered in

accordance with law, keeping in view the welfare of the child.

(16)  For the aforesaid reasons, Orders dated 21.05.2018 and

20.08.2018 passed by the High Court of Judicature at Allahabad

in First Appeal No.316 of 2018 are set aside.  We request the

High Court to dispose of the appeal itself as expeditiously as

possible in accordance with law.

(17)  In  the  result,  the  appeals  are  allowed  with  the

direction’s as indicated above.  No costs.  

.........................J.                 (R. BANUMATHI)

.........................J.         (R. SUBHASH REDDY)

NEW DELHI, APRIL 5, 2019.