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NON- REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4308 OF 2012 (Arising out of Special Leave Petition (C) No. 13254 of 2011)  

Shaleen Kabra Appellant

Vs.

Shiwani Kabra Respondent

With  

CIVIL APPEAL NO.4309 OF 2012 (Arising out of Special Leave Petition (C) No. 15819 of 2011)

JUDGMENT

ANIL R. DAVE,  J

1. Leave granted.

2. Being aggrieved by the judgment of the High Court of Delhi dated the  

21st of February, 2011 in CM(M) 1018 of 2010, these appeals have  

been filed by the parties before the High Court, who are parents of two  

children, whose custody is the subject matter of these appeals.  

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3. As the impugned order is challenged in both these appeals, both the  

appeals  were  heard  together  and  they  are  being  decided  by  this  

common order.  For the sake of convenience, parties to the litigation  

have been referred to hereinbelow as arrayed in Civil Appeal arising  

out of Special Leave petition No. 13254 of 2011.

4. The marriage of the appellant and the respondent was solemnized on  

14.02.1994.  From  the  wedlock,  two  sons  were  born,  who  are  

approximately 15 and 9 years old.  The appellant and the respondent  

have been living separately since 10.04.2007, and have been involved  

in various litigations since then, including a petition for divorce under  

Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the  

appellant-father and also proceedings under the Protection of Women  

from  Domestic  Violence  Act,  2005,  initiated  by  the  respondent-

mother. The appellant, who is an IAS officer, stationed at Jammu at  

present,  had  sought  certain  modifications  in  the  arrangement  of  

custody  of  the  children,  and  also  permission  to  take  transfer  

certificates of the children from Delhi and complete their admission in  

a  school  in  Jammu,  and  in  this  respect,  moved  applications  dated  

25.05.2010 and 22.06.2010 before the Additional District Judge. The  

Learned Additional District Judge, vide order dated 19.07.2010 was  

pleased to allow the applications moved by the appellant-father.  

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5. Being aggrieved by the above-mentioned judgment delivered by the  

Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before  

the High Court. By virtue of the impugned judgment, the High Court  

partly  allowed  the  petition  filed  by  the  respondent  whereby  the  

respondent was permitted to have custody of the younger son, whereas  

the appellant was to have custody of the elder son.  

6. While  coming  to  the  above  conclusion,  the  High  Court  has  cited  

various decisions in support of the contention that while deciding the  

issue  about  custody  of  children  in  a  matrimonial  dispute,  the  

paramount consideration is that of welfare of the child. Thereafter, on  

the basis of interaction with the children in the Chambers, the learned  

Single Judge was of the view that the elder son had a strong desire to  

stay with the appellant-father.  He also found that there was also an  

admission by the respondent-mother  that  she  would not  be  able  to  

adequately  handle  the  educational  needs  of  the  elder  son  without  

tutors. For the aforestated reasons, the learned Single Judge ordered  

that custody of the elder son should remain with the appellant-father.  

7. In the case of the younger son, the learned Single Judge observed that  

he, being of a very tender age, was incapable of forming a definite  

preference as to with whom he wanted to stay. In the circumstances,  

the learned Single Judge ordered that the custody of the younger son  

should be given to the respondent-mother, as she would be in a better  

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position to understand the needs of such a young child. On this basis,  

the  custody  of  the  younger  son  was  directed  to  remain  with  the  

respondent.  

8. The learned Single Judge also recorded a finding to the effect that  

both the children appeared to be very happy in the company of each  

other as there was a strong bonding between them.  

9. Being aggrieved by the said judgment,  both the parties  have come  

before this Court vide the present appeals.  

10.We heard the learned counsel for the parties, and also spoke to the  

children at length.  

11. The counsel appearing for the appellant-father, at the outset, submitted  

that  the  High  Court  ought  not  to  have  directed  separation  of  two  

children, in view of the close relationship between them and he further  

submitted that there could be disastrous effect of such a separation on  

them. Thereafter, the learned counsel made further submissions about  

the  poor  academic  performance  of  the  younger  son  while  in  the  

custody  of  the  respondent-mother,  and  also  regarding  the  alleged  

adulterous conduct of the respondent-mother, which was said to have  

a severe adverse effect on the children. The learned counsel further  

added that the father of the appellant, i.e. grand father of the children,  

is staying with the appellant and he, being a very educated person,  

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would be in a position to take good care of the children. On these  

grounds  inter alia, the learned counsel argued that both the children  

ought not to have been separated, and that custody ought to have been  

granted to the appellant-father.  

12.On the other hand, the learned counsel appearing for the respondent-

mother submitted that looking to the service condition and status of  

the  appellant-father,  occupying  a  stressful  position  in  the  state  of  

Jammu & Kashmir, he would not have sufficient time to give adequate  

attention to the children and if custody of the children is given to him,  

the children would be taken care of only by servants and that would  

not  be  in  the  interest  of  the  children.  Further,  the  learned  counsel  

argued that  as  the  children were  already in  a  very  good school  in  

Delhi, it would not be just and proper to move them to another school  

in Jammu & Kashmir which might be of an inferior standard. For the  

aforestated reasons, the learned counsel argued that custody of even  

the elder son ought to have been granted to the respondent-mother.

13.On hearing the learned counsel and also upon talking at length with  

the children,  we find force in the arguments of the counsel  for the  

appellant-father.  

14.Upon speaking to the children personally, we also found that they are  

indeed very much attached to each other. This fact was also noted by  

the learned Single Judge of the High Court in the impugned judgment,  

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and is  also admitted by both the parties  in  their  respective  written  

submissions.  Looking  to  the  overall  peculiar  circumstances  of  the  

case, it is our view that the welfare of both the children would be best  

served if they remain together. In our view it would not be just and  

proper  to  separate  both  brothers,  who are  admittedly very close  to  

each other.  

15.If we are of the view that both the brothers should not be separated  

and should be kept together, the question would be as to who should  

be given custody of the children.

16.We are of  the view that  the children should be with the appellant-

father.  The respondent-mother is not in a position to look after the  

educational need of the elder son and as we do not desire to separate  

both the brothers, in our opinion, looking to the peculiar facts of the  

case, it would be in the interest of the children that they stay with the  

appellant-father.

17.We are sure that  the appellant-  father,  who is  a member of  Indian  

Administrative Service and is a well groomed person, with the help of  

his father, who was also a professor, will be able to take  very good  

care of the children.  Their education would not be adversely affected  

even in Jammu  and Kashmir as it would be possible for the appellant-

father to get them educated in a good school in Jammu.  We do not  

believe  that  the  children  would  remain  in  company  of  servants  as  

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alleged by the learned counsel appearing for the respondent-mother.  

Father of the appellant i.e. the grandfather of the children would also  

be in a position to look after  the children and infuse good cultural  

values into them.  Normally, grandparents can spare more time with  

their  grand  children  and  especially  company  of  well  educated  

grandparents  would  not  only  help  the  children  in  their  studies  but  

would also help them to imbibe cultural and moral values and good  

manners.

18.So as to see that the respondent-mother is also not kept away from the  

children, she shall have a right to visit the children atleast once in a  

month.  The appellant –father shall make arrangements for A.C. First  

Class railway ticket for the respondent-mother or shall pay the railway  

fare to her so as to visit the children once in a month at a weekend and  

the  appellant-father  shall  also  make  arrangements  for  stay  of  the  

respondent-mother  either  at  his  own  residence,  if  the  respondent-

mother  agrees  to  that,  otherwise  the  appellant-father  shall  make  

arrangements for suitable accommodation for the respondent-mother  

when she comes to Jammu to visit the children.

19.During the period of  vacation exceeding two weeks,  the appellant-

father shall  send the children to Delhi so that the children can stay  

with the respondent-mother atleast for three days.  We are sure that the  

appellant  and  the  respondent  shall  determine  the  modalities  as  to  

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during which portion  of  the  vacation,  the  children should  visit  the  

respondent-mother as almost both the parents are interested in having  

the company of the children.

20. For the aforestated reasons and looking to the peculiar facts of the  

case, we quash and set aside the impugned order passed by the High  

Court and restore the order of the trial court, subject to modification of  

conditions-arrangements, recorded hereinabove.  The custody of both  

the children shall  be given to the appellant-father  before 15th May,  

2012 and the arrangements with regard to visit  of the children etc.  

shall take effect from 1st June, 2012, the respondent-mother shall do  

the needful to send the younger son to the residence of the appellant-

father before 15th May, 2012.

21.The appeals are accordingly allowed with no order as to costs.  

…………………………J  (D.K. JAIN)

…………………………J (ANIL R. DAVE)

NEW DELHI May 8 , 2012

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