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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