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 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 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 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 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 the
respondent will meet the children in New Delhi once in a month. Both the
learned counsel have fairly agreed to the suggestion.
In view of the above position, we issue the following directions:-
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 :
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;
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 (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
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 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 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 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 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 the
respondent will meet the children in New Delhi once in a month. Both the
learned counsel have fairly agreed to the suggestion.
In view of the above position, we issue the following directions:-
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 :
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;
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 (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
